United States v. Maggie Boler

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 23, 2024
• Docket: 23-4352
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4352

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MAGGIE ANNE BOLER,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Terry L. Wooten, Senior District Judge. (3:22-cr-00073-TLW-1)

Argued: May 9, 2024 Decided: August 23, 2024

Before THACKER, QUATTLEBAUM, and BENJAMIN, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion in which Judge Benjamin joined. Judge Quattlebaum wrote a dissenting opinion.

ARGUED: Jeremy A. Thompson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Tommie DeWayne Pearson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Adair F. Boroughs, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. USCA4 Appeal: 23-4352 Doc: 46 Filed: 08/23/2024 Pg: 2 of 51

THACKER, Circuit Judge:

Maggie Boler (“Appellant”) was convicted of six counts of presenting false claims

against the United States by submitting false tax returns to the Internal Revenue Service

(“IRS”), and one count of making a false statement on her fraudulent Paycheck Protection

Program 1 (“PPP”) loan application. Appellant submitted six tax returns to the IRS but only

received refunds on four of those returns. As a result of her convictions, Appellant was

sentenced to 30 months of imprisonment.

The sole issue in this appeal is whether Appellant’s United States Sentencing

Guidelines (“Guidelines”) sentencing range can rely on the entire financial harm Appellant

intended to cause, even though she never received the funds from the two tax returns denied

by the IRS.

We conclude that the complete extent of Appellant’s intended financial harm can

be utilized in determining her Guidelines sentencing range. Thus, we affirm because the

district court correctly incorporated Appellant’s full intended loss amount into the

sentencing calculation.

1 In 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Pub. L. 116-136, § 1102, 134 Stat. 285, 286 (2020). Section 1102 of the CARES Act created the Paycheck Protection Program to grant forgivable loans to small business owners for certain expenses. Id.

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I.

A.

Appellant was prosecuted for her involvement in a fraudulent tax scheme. Part of

her scheme was filing fraudulent tax returns to the IRS, claiming larger refund amounts

than she and others were entitled to. Appellant used fictitious interest income and

fabricated federal income tax withholdings to claim these large tax refunds. For the 2016

tax year, Appellant submitted six fraudulent tax returns on behalf of herself and others,

falsely claiming a total of $159,389 in tax refunds. The IRS denied two of the fraudulent

tax returns but paid the other four tax refunds, which totaled $116,106.

In 2021, Appellant applied for a PPP loan. In her PPP loan application, Appellant

stated that her business, named “Maggie A Boler,” had an average monthly payroll of

$9,500 for one employee -- herself. In her application, Appellant requested $20,833 based

on this information. This information was false. There was no evidence supporting the

existence of any business in Appellant’s name. Namely, there were no “business

expenses,” “required withholdings for a business such as payments to Social Security,” or

any “tax payments.” J.A. 93. 2 And the IRS could not locate “any payroll payments to

[Appellant] for $9,500 a month.” Id. at 92–93. As a result of her fraudulent PPP loan

application, Appellant received $20,833 to which she was not entitled.

2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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B.

In 2022, Appellant was indicted on six counts of presenting false claims against the

United States in violation of 18 U.S.C. § 287 and one count of making a false statement

via the PPP loan application in violation of 18 U.S.C. § 1014. Appellant proceeded to trial

and was found guilty on all counts.

Prior to sentencing, the United States Probation Office (the “Probation Office”)

prepared Appellant’s Presentence Investigation Report (“PSR”). In the PSR, the Probation

Office calculated the loss associated with Appellant’s fraudulent scheme in order to

determine the recommended sentencing enhancements pursuant to Guidelines

§ 2B1.1(b)(1). In doing so, the Probation Office relied on the commentary to

section 2B1.1, which defines “loss” as the “greater of actual loss or intended loss.”

Guidelines § 2B1.1 cmt. 3(A). The commentary further defines “[a]ctual loss” as the

“reasonably foreseeable pecuniary harm that resulted from the offense,” whereas

“[i]ntended loss” is defined as “the pecuniary harm that the defendant purposely sought to

inflict,” including any “intended pecuniary harm that would have been impossible or

unlikely to occur.” Id. § 2B1.1 cmt. 3(A)(i)–(ii).

Based on the commentary, the Probation Office calculated Appellant’s intended loss

amount as $180,222. This amount combined all six fraudulent tax return refunds Appellant

submitted to the IRS, which amounted to $159,389, plus the $20,833 PPP loan. Although

the IRS did not pay two of the claimed refunds, the Probation Office nevertheless counted

all six tax returns toward Appellant’s sentencing enhancements pursuant to Guidelines

§ 2B1.1 cmt. 3(A)(ii). That is because all six tax returns, plus the PPP loan amount,

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represented the full amount of harm Appellant intended to cause. On the other hand, the

actual loss Appellant caused equaled the total refunds she received from the IRS

($116,106) plus her PPP loan amount ($20,833) for a total of $136,939. Because the

commentary requires the sentencing court to apply the higher of a defendant’s actual or

intended loss, the Probation Office relied on the intended loss amount of $180,222. As a

result, the Probation Office recommended a ten-level sentencing enhancement because the

loss amount exceeded $150,000 but was not more than $250,000. See Guidelines

§ 2B1.1(b)(1)(F).

Appellant objected to the calculated loss amount contained in the PSR, arguing that

the loss calculation should not include the two tax returns rejected by the IRS. The

Probation Office rejected Appellant’s contention and maintained the recommended ten-

level enhancement in the PSR.

At the sentencing hearing, Appellant articulated her objection to the calculated loss

amount. Appellant relied on Kisor v. Wilkie, 588 U.S. 558 (2019), which requires a court

to determine that a regulation is genuinely ambiguous before deferring to an agency’s

interpretation of its own regulation -- in this case, the Guidelines’ commentary. Appellant

argued that the ordinary meaning of “loss” as written in Guidelines § 2B1.1 is not

ambiguous. She contended that “loss” encompasses the actual amount lost by the victim

and not any intended loss. Therefore, in her view, the unambiguous meaning of “loss”

only included actual loss and the commentary could not expand the plain text. Thus,

Appellant argued that the two tax returns rejected by the IRS could not be included in the

loss calculation.

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The district court overruled Appellant’s objection. The district court held that “loss”

as written in section 2B1.1 does not “draw any distinction between” actual and intended

loss. J.A. 282. While the district court did not explicitly state that the term “loss” is

ambiguous, it did observe that nothing in the text of the Guideline “says [that] loss can’t

be both” actual and intended. Id. Thus, in the district court’s view, the commentary’s

definitions of “loss” simply provides “an explanation of the types of loss that you can have,

and both would be appropriate to determine what the guideline range would be.” Id. at

283. Based on a total offense level of 19, which included the ten-level enhancement for

the loss calculation, and a criminal history category of I, the district court calculated

Appellant’s Guidelines sentencing range to be 30–37 months of imprisonment. The district

court imposed a sentence of 30 months of imprisonment.

This timely appeal followed.

II.

We review de novo the district court’s legal interpretation of the term “loss.” United

States v. Miller, 316 F.3d 495, 498 (4th Cir. 2003). But “to the extent that the determination

of the amount of loss is a factual matter, we review only for clear error.” United States v.

West, 2 F.3d 66, 71 (4th Cir.1993) (internal quotation marks omitted).

III.

The Guidelines set forth certain increases to a defendant’s offense level depending

on the amount of “loss” related to the fraud committed. See Guidelines § 2B1.1(b)(1). The

relevant Guideline, section 2B1.1, directs a sentencing court to increase the offense level

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pursuant to the Guidelines where “the loss exceeded $6,500.” Id. Section 2B1.1 does not

define what constitutes “loss” for purposes of calculating the applicable sentencing

enhancement. But the Guidelines’ commentary to section 2B1.1 lists several definitions

of loss and instructs the sentencing court as to how to calculate the appropriate loss amount.

See id. cmt. 3(A). The Guidelines’ commentary defines “[a]ctual loss” as the “reasonably

foreseeable pecuniary harm that resulted from the offense.” Id. cmt. 3(A)(i). And it defines

“[i]ntended loss” as “the pecuniary harm that the defendant purposely sought to inflict,”

including “intended pecuniary harm that would have been impossible or unlikely to occur.”

Id. cmt. 3(A)(ii). The commentary instructs the sentencing court to apply the loss that is

“the greater of actual loss or intended loss.” Id. cmt. 3(A).

When deciding whether to defer to the Guidelines’ commentary, we apply the

framework set forth in Kisor v. Wilkie, 588 U.S. 558 (2019). See United States v. You, 74

F.4th 378, 397 (6th Cir. 2023). Prior to Kisor, our analysis of the Guidelines’ commentary

was guided by the standard outlined in Stinson v. United States, 508 U.S. 36 (1993). In

Stinson, the Supreme Court “held that the commentary deserves the same deference that

courts give agencies’ interpretations of their own rules” -- commonly known as Seminole

Rock/Auer deference. 3 United States v. Campbell, 22 F.4th 438, 444 (4th Cir. 2022) (citing

508 U.S. at 44–45). Based on Stinson, we were to defer to the commentary unless its

interpretation is “plainly erroneous or inconsistent” with the plain language of the

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); Auer v. Robbins, 3

519 U.S. 452, 461 (1997).

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Guideline. Id. at 45; see also id. at 45–47 (discussing Stinson, Seminole Rock/Auer

deference, and the “line of cases governing this type of deference”). 4

But Stinson’s analysis was altered by Kisor. As we noted in United States v.

Campbell, “Kisor limited when courts will afford Seminole Rock/Auer deference” to an

agency’s interpretation of its own regulations, and in turn, to the commentary to the

Guidelines. 22 F.4th at 445 (citing 588 U.S. 558).

Pursuant to Kisor’s directive, “Auer deference ‘can arise only if a regulation is

genuinely ambiguous.’” Romero v. Barr, 937 F.3d 282, 291 (4th Cir. 2019) (quoting 588

U.S. at 573). And a regulation can only be deemed “genuinely ambiguous” if uncertainty

exists “even after a court has resorted to all the standard tools of interpretation,” including

consideration of the “text, structure, history, and purpose of a regulation.” Kisor, 588 U.S.

at 573, 575. “If uncertainty does not exist, there is no plausible reason for deference. The

regulation then just means what it means—and the court must give it effect, as the court

would any law.” Id. at 574–75.

Thus, concluding whether a rule is “genuinely ambiguous” is step one of the

analysis. See Kisor, 588 U.S. at 573. Once a regulation is determined to be genuinely

ambiguous, “the agency’s reading must still fall ‘within the bounds of reasonable

4 The Supreme Court’s recent ruling in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), calls into question the viability of Auer deference. In Loper Bright, the Court rejected the long-standing notion that “ambiguities” in statutory language act as “implicit delegations to agencies.” Id. at 2265. Since Loper Bright dealt specifically with ambiguities in statutory directives to agencies and did not address the issue of agency interpretations of their own regulations, we will apply the Supreme Court’s recent guidance in Kisor to address the issue before us today. 8 USCA4 Appeal: 23-4352 Doc: 46 Filed: 08/23/2024 Pg: 9 of 51

interpretation’” in order to be accorded deference. Id. at 559 (quoting Arlington v. FCC,

569 U.S. 290, 296 (2013)). In other words, the agency’s interpretation of its regulation

“must come within the zone of ambiguity” created by the ambiguous text of the regulation.

Id. at 576.

Still, Kisor warns that “not every reasonable agency reading of a genuinely

ambiguous rule should receive Auer deference.” Kisor, 588 U.S. at 576. We must also

“make an independent inquiry into whether the character and context of the agency

interpretation entitles it to controlling weight.” Id. This inquiry ensures that courts defer

only to those agency readings “that Congress would have wanted [them] to.” See id.

While there is no “exhaustive test” to determine whether the character of an

agency’s interpretation is entitled to Auer deference, the Supreme Court has “laid out some

especially important markers.” Kisor, 588 U.S. at 576–77. First, the interpretation must

be the “official position” of the agency. Id. at 577 (internal quotation marks omitted).

“Next, the agency’s interpretation must in some way implicate its substantive expertise.”

Id. at 579. “Finally, an agency’s reading of a rule must reflect its ‘fair and considered

judgment.’” Id. (quoting Auer, 519 U.S. at 462).

The issue we confront in this case is whether the term “loss” in Guidelines § 2B1.1

is genuinely ambiguous, and if it is, whether we should defer to the Guidelines’

commentary to ascertain its meaning.

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1.

At step one of the Kisor analysis, we must determine whether a genuine ambiguity

exists in section 2B1.1’s use of the term “loss.” If the term is ambiguous, we then consider

the commentary. Appellant, relying on what she views as the ordinary meaning of loss as

well as the canons of statutory interpretation, argues that the term “loss” is not ambiguous

and, therefore, the district court erred by deferring to the commentary’s definitions of

“loss.” In response, the Government argues that “loss” can mean several different things,

particularly in light of the context and history of the Guidelines. Thus, the Government

contends that in the face of a genuine ambiguity, the district court properly deferred to the

commentary.

We begin with the ordinary meaning of the term “loss.” See United States v. Haas,

986 F.3d 467, 480 (4th Cir. 2021) (“[W]e construe terms in the Sentencing Guidelines

according to their ordinary meaning.”).

Appellant argues that after considering the ordinary meaning of the term “loss,” it

is not genuinely ambiguous. Appellant relies on dictionary definitions to argue that “loss”

can only mean the “tangible, actual loss” suffered, for instance, “where [a] victim actually

lost money.” Appellant’s Opening Br. at 14. Appellant also points to a dictionary

definition of loss as “the disappearance or diminution of value” to support that “loss” can

only encompass “measurable actual loss.” Id. at 13–14 (citing Loss, Black’s Law

Dictionary (11th ed. 2019)). And Appellant argues that where “loss” plainly means actual

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loss, the commentary’s definition of “intended loss” inappropriately expands the plain text

of the Guidelines to include harm that did not occur.

In response, the Government asserts that the term “loss” is “not as limited as

[Appellant] would claim.” United States Resp. Br. at 14. The Government points out that

“loss” has a “myriad” of different definitions. Id. For instance, the Government cites the

Merriam-Webster Dictionary, which alone has “seven distinct definitions of ‘loss,’ with

those definitions often having multiple sub-definitions.” Id. And the Government

disagrees with Appellant’s contention that the definitions of “loss” exclusively refer to

measurable actual loss. Instead, the Government points out that “loss” also includes

intangible harm such as the “absence of a physical capability,” “the harm or privation

resulting from losing or being separated from someone or something,” or a “failure to gain,

win, obtain, or utilize” a goal. Id. (quoting Loss, Merriam-Webster, https://www.merriam-

webster.com/dictionary/loss [https://perma.cc/J6HK-YEYJ]).

As noted by the Government, dictionary definitions do not reveal any single

definition of the term “loss.” For example, the 1993 edition of Webster’s New

International Dictionary defines “loss” as any of the following:

(a) the act or fact of losing;

(b) a person or thing or an amount that is lost;

(c) the act or fact of failing to gain, win, obtain, or utilize;

(d) [a] decrease in amount, magnitude, or degree;

(e) the state or fact of being destroyed or placed beyond recovery; and

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(f) the amount of an insured’s financial detriment due to the occurrence of a stipulated contingent event.

Webster’s New International Dictionary 1338 (1993); see also United States v. Banks, 55

F.4th 246, 257–58 (3d Cir. 2022) (discussing the same). In attempting to collect dictionary

definitions of “loss,” the Sixth Circuit opined:

One dictionary defines the word to mean, among other things, the “amount of something lost” or the “harm or suffering caused by losing or being lost.” American Heritage Dictionary of the English Language 1063 (3d ed. 1992). Another says it can mean “the damage, trouble, disadvantage, [or] deprivation . . . caused by losing something” or “the person, thing, or amount lost.” Webster’s New World College Dictionary 799 (3d ed. 1996). A third defines it as “the being deprived of, or the failure to keep (a possession, appurtenance, right, quality, faculty, or the like),” the “[d]iminution of one’s possessions or advantages,” or the “detriment or disadvantage involved in being deprived of something[.]” 9 Oxford English Dictionary 37 (2d ed. 1989).

United States v. Riccardi, 989 F.3d 476, 486 (6th Cir. 2021) (alterations in original). These

multiple and varied definitions alone demonstrate that “loss” could mean a number of

different things depending on the dictionary of one’s choice. Thus, there is “no single right

answer” to the meaning of “loss” based on its plain reading. See Kisor, 588 U.S. at 575;

see also You, 74 F.4th at 397 (“[T]he term ‘loss’ in § 2B1.1 has no one definition and can

mean different things in different contexts.” (internal quotation marks and citation

omitted)); United States v. Rainford, -- F.4th --, 2024 WL 3628082 at *7 (2d Cir. Aug. 2,

2024) (same).

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Nor do the various cannons of statutory interpretation render the term “loss” as

written in section 2B1.1 any less ambiguous. 5 When interpreting a regulation, we do not

read its language “in isolation.” Lynch v. Jackson, 853 F.3d 116, 121 (4th Cir. 2017).

Rather “the words . . . must be read in their context and with a view to their place in the

overall [regulatory] scheme.” Id. (internal quotation marks omitted). In interpreting a

regulation’s plain language, we look to “the specific context in which the language is used,

and the broader context of the” regulation as a whole. Hurlburt v. Black, 925 F.3d 154,

158 (4th Cir. 2019) (en banc) (internal quotation marks omitted).

Appellant argues that the context of section 2B1.1 unambiguously limits “loss” to

actual loss. Appellant first emphasizes that because loss must have “exceeded” $6,500 in

order for an enhancement to apply, “loss” cannot include harm that was not actually

inflicted. See Guidelines § 2B1.1(b)(1). Appellant asserts that “[b]y using the verb

5 We pause to address the use of corpus linguistics in the dissent’s analysis. While the dissent views corpus linguistics as simply “another tool for interpreting the meaning of words in a statute (or other text),” it is not so benign. Post at 27. Indeed, legal corpus linguistics can be quite a flawed tool; a controversial tool at best. See Anya Bernstein, What Counts as Data?, 86 Brook. L. Rev. 435 (2021); Anya Bernstein, Legal Corpus Linguistics and the Half-Empirical Attitude, 106 Cornell L. Rev. 1397 (2021) (hereinafter Bernstein, Legal Corpus Linguistics); Mark W. Smith & Dan M. Peterson, Big Data Comes for Textualism, 70 Drake L. Rev. 387 (2021); John S. Heretic, Against Corpus Linguistics, 108 The Geo. L.J. Online 51. The bottom line is that context matters and legal corpus linguistics largely “ignores the crucial contexts in which legal language is produced, interpreted, and deployed.” Berstein, Legal Corpus Linguistics, at 1397. A survey of novels, magazines, newspapers, popular television shows and movies is no match for legal analysis of the text, structure, purpose and history of the actual regulation we are considering.

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‘exceed’ in its past tense in conjunction with a value, [section] 2B1.1(b)(1) anticipates the

enhancement applying where the victim actually lost money.” Appellant’s Opening Br. at

14. And Appellant avers that “[a] defendant’s intent has nothing to do with measuring

whether loss exceeded $6,500.” Id. (internal quotation marks omitted).

In response, the Government asserts that there is no need to delve into the guesswork

urged by Appellant in order to discern the context of section 2B1.1 because the United

States Sentencing Commission (“Commission”) has already provided ample context for

“loss” in Guidelines § 1B1.3 -- the relevant conduct Guideline. In section 1B1.3, the

Commission directs a sentencing court to consider not only the actual harm caused by a

defendant but also “all harm that was the object of such acts and omissions.” Guidelines

§ 1B1.3(a)(3) (emphasis supplied). In the Government’s view, this broad interpretation of

“harm” expands the definition of “loss” within section 2B1.1 without resort to the

commentary. In other words, “loss” is ambiguous where it can mean different types of

harm, including actual or intended harm.

We agree with the Government’s view that the context of section 1B1.3 applies to

our interpretation of “loss” as written in section 2B1.1. The relevant conduct Guideline

directs courts as to how to consider “harm” in the context of specific offense characteristics

“[u]nless otherwise specified.” Guidelines § 1B1.3(a). In this instance, section 2B1.1 does

not explicitly limit “loss” to actual or intended loss. Therefore, the language of

section 1B1.3 provides a starting point for interpreting the section 2B1.1 enhancements.

When read together, Guidelines sections 1B1.3 and 2B1.1 support the understanding that

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“loss” must encompass both the actual harm and the harm that was the object of Appellant’s

scheme.

Where, as here, the Commission has provided an expansive context for interpreting

“harm” and the text of the Guideline at issue does not specify the type of “harm,” “loss”

cannot be as limited as Appellant contends. That is true especially where it would

undermine the Commission’s directive. See Kisor, 588 U.S. at 590–91 (directing the court

to carefully consider not only the text but also the history and purpose of a regulation when

assessing whether ambiguity exists). Indeed, section 1B1.3 lends more ambiguity to the

meaning of “loss” because it can encompass more than the actual harm caused by a

defendant.

c.

Appellant further argues that “loss” should be limited to “actual loss” where the

Commission omitted any reference to intended harm. In Appellant’s view, the decision to

omit explicit language including “intended loss” from section 2B1.1 was intentional where

similar language is present in other sections of the Guidelines.

In support, Appellant cites the tax evasion Guideline, where the Commission defines

tax loss to include “the total amount of loss that was the object of the offense (i.e., the loss

that would have resulted had the offense been successfully completed).” Guidelines

§ 2T1.1(c)(1). To support her argument, Appellant attempts to liken this case to the facts

and Guideline at issue in United States v. Campbell, 22 F.4th 438. In Campbell, we held

that where Guidelines section 4B1.2 defined “controlled substance offense[s]” to the

exclusion of any attempt crimes, the commentary could not expand the plain text of the

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Guidelines to include inchoate crimes. Id. at 445. We reasoned that common sense and

the canon of expressio unius dictated that “a definition which declares what a term means

excludes any meaning that is not stated.” Id. (internal quotation marks omitted).

But the present case differs from Campbell because section 2B1.1 does not define

“loss” and does not suggest that intended loss should be excluded from its definition. And,

as previously discussed, the relevant conduct that Guideline § 1B1.3 directs the sentencing

court to consider is more than just the tangible harm -- it includes unrealized but intended

loss.

Further, contrary to the dissent’s contention, our reading of section 2T1.1(c)(1) in

comparison to section 1B1.3(a) does not render the language of other Guidelines sections

“superfluous.” See Post at 11. Reference to Guidelines § 2T1.1(c)(1) is not a useful

comparator. It simply does not apply here.

Section 1B1.3(a) instructs sentencing courts as to how to interpret “harm” as used

throughout the Guidelines when the definition of harm is not “otherwise specified.”

Guidelines § 1B1.3(a) (emphasis supplied). The fact that other sections, such as Guidelines

§ 2T1.1(c)(1), specify that the harm at issue in that particular section also includes intended

loss does not make our interpretation of section 1B1.3 inappropriate in this case. That is

because here, the Guideline at issue does not define the type of harm the court should

consider. Indeed, section 1B1.3 does not apply to the tax section cited by both the

Appellant and the dissent because there, unlike here, the type of harm the court must

consider is clearly defined in the text of that Guideline. Thus, courts can apply the language

of sections 2T1.1 and 1B1.3 simultaneously without negating any instruction by the

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Commission. However, if we were to adopt the dissent’s reasoning, we would, in turn,

read out the language of section 1B1.3 that instructs courts to consider both actual and

intended harm, unless otherwise specified.

In sum, the structure of the Guidelines supports the conclusion that the meaning of

“loss” is broad enough to encompass intended loss. 6 And, at minimum, the dissent’s

comparison of sections 1B1.3(a) and 2T1.1(c)(1) creates more confusion as to the meaning

of the term “loss” in section 2B1.1, supporting our holding that “loss” is genuinely

ambiguous.

d.

The purpose of the Guidelines further cuts against Appellant’s narrow reading of

“loss.” In promulgating the Guidelines, the Commission set out to “establish sentencing

policies and practices for the Federal criminal justice system that . . . avoid[] unwarranted

sentencing disparities among defendants with similar records who have been found guilty

of similar criminal conduct.” 28 U.S.C. § 991(b)(1)(B). The Commission relies on the

intended loss amount to further this goal where it encompasses both “the seriousness of the

offense and the defendant’s relative culpability.” Guidelines § 2B1.1 cmt. (background);

see id. App. C Supp. at 104–05 (Amend. 792) (noting “the Commission’s continued belief

6 In fact, the Sentencing Commission has recently promulgated amendments to the Guidelines that will resolve this issue going forward. The amendments will incorporate the intended loss commentary, Guidelines § 2B1.1 cmt. 3(A), into the Guidelines’ text. 89 Fed. Reg. 36,853, 36,855–36,857 (May 3, 2024) (effective Nov. 1, 2024, absent contrary action by Congress). Thus, the text of the Guideline itself will define “loss” as the greater of the actual loss or intended loss.

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that intended loss is an important factor” because it focuses “specifically on the defendant’s

culpability”).

Were we to accept Appellant’s limited reading of “loss,” it could result in sentencing

disparities for defendants with similar culpability. And this is contrary to the Guidelines’

purpose. For instance, if sentencing courts only considered “actual loss” when deciding

the specific offense characteristics, defendants with equal culpability for the same criminal

acts would receive longer sentences merely because, for one reason or another, one

succeeded in carrying out their fraudulent scheme while the other did not. See United

States v. You, 74 F.4th 378, 398 (6th Cir. 2023) (noting potential sentencing disparities if

“loss” were to be so limited).

Because no single meaning of “loss” is evident from the plain text of section 2B1.1,

even after employing the traditional tools of interpretation, we conclude that a genuine

ambiguity exists.

2.

Given that ambiguity exists as to the Guidelines’ definition of “loss,” we next

consider whether the commentary’s definition of “loss” falls within the “zone of

ambiguity” such that it should be given deference. Kisor, 588 U.S. at 576; You, 74 F.4th

at 398. In doing so, we ask whether the commentary falls “within the bounds of reasonable

interpretation” by the relevant agency; here, the Commission. Id. (internal quotation marks

omitted). If it does, we independently inquire as to whether the commentary’s “character

and context” entitles it to “controlling weight.” Id. To make this assessment, we consider

whether the commentary is the Commission’s “official position,” “implicate[s] its

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substantive expertise” in some way, and reflects the “fair and considered judgment” of the

Commission such that it is not simply a “convenient litigating position.” Kisor, 588 U.S.

at 577–79 (citations omitted).

The character and context of the commentary entitle it to controlling weight. The

commentary’s definitions of loss are the Commission’s “official position.” Kisor, 588 U.S.

at 577. In 2001, the Commission amended the Guidelines to consolidate the theft and fraud

sections into section 2B1.1 (the “2001 Amendment”). Office of Gen. Counsel, U.S. Sent’g

Comm’n, Loss Calculations Under § 2B1.1(b)(1), at 1 (2020). Also known as the

“Economic Crime Package,” the 2001 Amendment was “the outcome of Commission

review of economic crime issues over a number of years.” Office of Educ. & Sent’g

Practice, Amendments to the Federal Sentencing Guidelines: Highlights of Key Points [of

the 2001 Amendment] 1 (2001). As a part of the Economic Crime Package, the

Commission “modified the definition of loss [in the commentary] such that it would be

based on reasonably foreseeable pecuniary harm and would include intended loss.” Loss

Calculations Under § 2B1.1(b)(1), at 1. Thus, the inclusion of intended loss in the

Economic Crime Package has been the longstanding position of the Commission. 7 And

7 The dissent ignores these sources, wherein, for example, the Office of General Counsel to the Commission clearly states that the Commission intended to retain the use of intended loss in the application of Guidelines § 2B1.1 when consolidating the theft and fraud Guidelines under the 2001 Amendment. While the dissent argues that the “intended loss” language previously contained in section 2F1.1 was intentionally removed by the 2001 Amendment, these sources indicate otherwise. Indeed, the Commission’s Office of Education and Sentencing Practices highlights this point -- “[t]he revised definition of loss retains the rule that loss is the greater of actual and intended loss.” Highlights of Key Points [of the 2001 Amendment] 1 (emphasis supplied).

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the use of “intended loss” in the commentary was the result of the well-reasoned decision

making by the Commission.

Moreover, the commentary reflects the “substantive expertise” of the Commission

and its “fair and considered judgment.” Kisor, 588 U.S. at 577, 579. Each year, the

Commission “collects a vast amount of federal sentencing data” and “also reviews and

refines the [G]uidelines in light of decisions from courts of appeals, sentencing-related

research, congressional action, and input from the criminal justice community.” U.S.

Sent’g Comm’n, About Us (2023),

https://www.ussc.gov/sites/default/files/pdf/about/overview/2023_About-Us-Trifold.pdf

[https://perma.cc/2ZUW-N62T]. Indeed, the Commission conducts ample research on

section 2B1.1 crimes and includes its findings on its website. See U.S. Sent’g Comm’n,

Quick Facts: Theft, Property Destruction, and Fraud Offenses (2023).

In sum, because the commentary defines loss within the “zone of ambiguity” created

by Guidelines § 2B1.1 and because the “character and context” of the commentary support

that it is deserving of “controlling weight,” see Kisor, 588 U.S. at 576, the district court

properly deferred to the commentary to determine the appropriate loss amount in

Appellant’s case.

In conclusion, because a genuine ambiguity exists as to the meaning of “loss” in

Guidelines § 2B1.1 and the character of the commentary supports that it is deserving of

deference, we affirm the district court’s application of the commentary and its reliance on

20 USCA4 Appeal: 23-4352 Doc: 46 Filed: 08/23/2024 Pg: 21 of 51

Appellant’s full intended loss amount to calculate her Guidelines sentencing range pursuant

to section 2B1.1.

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

21 USCA4 Appeal: 23-4352 Doc: 46 Filed: 08/23/2024 Pg: 22 of 51

QUATTLEBAUM, Circuit Judge, dissenting:

Sometimes lawyers and judges overcomplicate things. This is one of those

occasions. Today, the majority holds that the meaning of the word “loss” in U.S.S.G.

§ 2B1.1(b)(1) is ambiguous, such that we should defer to the Guideline commentary’s

definition of the word that encompasses intended losses. The majority thus concludes that

harm a wrongdoer intended to cause but did not achieve is nevertheless a loss. I see no way

to read the word “loss,” as used in § 2B1.1(b)(1), that way. “Loss” is not ambiguous.

“Loss” means actual loss, not intended loss. Because the Guideline commentary’s

interpretation of “loss” in § 2B1.1(b)(1) to include intended loss is both inconsistent with

and a plainly erroneous reading of the Guideline, no deference to the commentary is

warranted. And because the district court applied a § 2B1.1(b)(1) enhancement based on

intended loss instead of actual loss, I would vacate the sentence and remand for

resentencing with instructions to the district court to calculate Boler’s Guidelines range

without considering intended loss for purposes of a § 2B1.1(b)(1) enhancement. I

respectfully dissent.

This appeal presents a simple question: does the word “loss” in § 2B1.1(b)(1)

include tax refunds that Boler intended but failed to fraudulently obtain, or is it limited to

the actual funds she fraudulently obtained from the government? The answer is also simple.

“Loss” in § 2B1.1(b)(1) means only actual, not intended, loss.

22 USCA4 Appeal: 23-4352 Doc: 46 Filed: 08/23/2024 Pg: 23 of 51

A. Ordinary Meaning of the Text

We begin with the text of § 2B1.1(b)(1). See United States v. Skinner, 70 F.4th 219,

230 (4th Cir. 2023) (recognizing that “[c]ourts interpret the Sentencing Guidelines

according to the ordinary rules of statutory construction” (internal quotations omitted));

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (“As in all statutory construction

cases, we begin with the language of the statute.”). Section 2B1.1(b)(1) instructs courts to

apply a sentencing enhancement “[i]f the loss exceeded $6,500,” followed by a table of

enhancements corresponding to incrementally increasing loss amounts. U.S.S.G.

§ 2B1.1(b)(1) (emphasis added). The Guideline itself does not define “loss.” Even so, the

ordinary meaning of the term is clear. “Loss” refers to actual losses, not purely intended

ones. 1

Like the parties, the majority frames the interpretation of “loss” as seeking its 1

ordinary meaning. Maj. Op. at 10-11. But “[s]ometimes context indicates that a technical meaning applies. Every field of serious endeavor develops its own nomenclature— sometimes referred to as terms of art.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 73 (2012) (emphasis in original). There is an unsettled question of whether the Guidelines’ primary audience is ordinary citizens, whose criminal sentences are affected by them, or lawyers and judges, who use and apply them. See United States v. Seefried, 639 F. Supp. 3d 8, 14 (D.D.C. 2022). Following the lead of the parties and the majority, I have evaluated “loss” in terms of its ordinary meaning. But even if “loss” is a legal term of art when used in the Guidelines, I get to the same result. Around the time the Guidelines first used “loss,” Black’s Law Dictionary defined over 30 types of loss, including “capital loss,” “economic loss” and “passive loss.” See BLACK’S LAW DICTIONARY (6th ed. 1990). None of the defined types of loss refer to purely intended loss; they represent a broad variety of actual losses. Even “unrealized loss,” which might sound like it refers to a purely intended loss, does not cover intended losses when one looks to the definition of the term. See id. (defining “unrealized loss” as a “loss that has not yet materialized” (emphasis added)). So, regardless of whether “loss” is a legal term of art, it means only actual loss. 23 USCA4 Appeal: 23-4352 Doc: 46 Filed: 08/23/2024 Pg: 24 of 51

To illustrate, imagine Jonathan overhears Julia telling her friends that she keeps

$1,000 in cash in her closet for emergencies. Jonathan then breaks into Julia’s home,

intending to steal the $1,000 that he believes, based on what he overheard, Julia keeps in a

closet. If Jonathan indeed finds $1,000 and flees with it, and the police ask Julia the amount

of her loss, she will say $1,000. But what if while trying to gather up the $1,000, the sound

of a security alarm startles Jonathon into fleeing with only $500, leaving the other $500

behind? If asked the amount of her loss, Julia would not say $1,000 just because Jonathan

may have intended to steal that amount. She would say that her loss was the amount

Jonathan actually stole.

1. Dictionaries

Dictionaries confirm this understanding. In 1987, when the Guidelines were enacted

and first used “loss” in the context of sentencing enhancements for economic offenses, see

U.S.S.G. §§ 2B1.1(b)(1), 2F1.1 (1987), Merriam-Webster defined “loss” as “the act of

losing; that which is lost; defeat; diminution; bereavement; harm; waste by escape or

leakage; [or] number of casualties suffered in war.” Loss, WEBSTER’S DICTIONARY (1987).

Similarly, Collins Dictionary defined “loss” to include “bereavement, deprivation,

disappearance, failure, forfeiture, losing, misfortune, mislaying, privation, squandering,

[or] waste,” as well as “cost, damage, defeat, destruction, detriment, disadvantage, harm,

hurt, impairment, injury, [or] ruin.” Loss, THE NEW COLLINS DICTIONARY AND

THESAURUS IN ONE (1987). All these definitions involve actual loss. None involve purely

intended loss.

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As the majority recognizes, the definitions of “loss” include a wide variety of

categories. Maj. Op. at 11–12. I agree that “loss” is a broad term. But breadth does not

equal ambiguity. To explain, consider “vehicle.” Cambridge Dictionary defines “vehicle”

as “a machine, usually with wheels and an engine, used for transporting people or goods,

especially on land.” 2 Under that definition, cars, trucks, vans and buses are vehicles. Other

dictionaries’ definitions of “vehicle” are not limited to land. For example, Merriam-

Webster defines “vehicle” as “a means of carrying or transporting something.” 3 So, under

that definition, “vehicle” may include planes, helicopters and boats. But the word is not

ambiguous just because there are many different types of vehicles.

Even though the government insists “loss” is ambiguous, all the definitions that it—

and the majority—cite are consistent. Each involves an event or state of being that has

actually happened. Whether economic, physical or emotional, each definition concerns an

actual, realized loss. None suggest that “loss” includes harm that was intended but never

realized.

Resisting that conclusion, the government contends that three of the modern 4

dictionary definitions it cites cover intended loss. These three definitions are (1) “the partial

2 Vehicle, CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/diction ary/english/vehicle [https://perma.cc/F6V26DZZ] (last visited July 1, 2024). 3 Vehicle, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/vehi cle [https://perma.cc/W7X9-3XHE] (last visited July 1, 2024). 4 The government relies on modern definitions of “loss.” However, our point of focus is the meaning of the term when it was first used in the Guidelines for sentencing enhancements for economic offenses. See United States v. Hill, 963 F.3d 528, 532 (6th Cir. (Continued) 25 USCA4 Appeal: 23-4352 Doc: 46 Filed: 08/23/2024 Pg: 26 of 51

or complete deterioration or absence of a physical capability or function”; (2) “the harm or

privation resulting from losing or being separated from someone or something”; and (3) “a

failure to gain, win, obtain, or utilize.” Resp. Br. at 14 (quoting Loss, MERRIAM-WEBSTER

(2023)). The government argues that the “absence of a physical capability,” such as the

loss of the ability to play a sport, is not an actual, measurable loss. Id. And it contends that

“the harm or privation resulting from losing or being separated from someone or

something” is “a reflection of an unmeasurable, emotional reaction.” Id. As for the “failure

to gain, win, obtain, or utilize,” the government insists that such a loss “would clearly be

reflected by the IRS’s inability to gain or obtain proper tax revenue.” Id.

I fail to see how those arguments help the government. The first two examples the

government offers involve intangible losses. But intangible losses are still actual losses.

Take, for instance, the “absence of a physical capability.” An accident that results in

injuries that render a person unable to walk would fall under that definition. The inability

to walk is an actual loss, as it actually impairs the person’s physical capabilities. Such an

impairment may decrease the person’s quality of life. While that type of loss is intangible

and difficult to measure with a monetary value, juries value such intangible losses all the

time. The intangibility of such a loss does not make it any less real. It may be true that

§ 2B1.1(b)(1) concerns only tangible losses. But even so, the issue we confront is not

2020) (“And we look to dictionaries that defined the relevant words when the Sentencing Commission initially used them in 1987.”). This is the same way we interpret statutes. See Niz-Chavez v. Garland, 593 U.S. 155, 160 (2021); Wis. Cent. Ltd. v. United States, 585 U.S. 274, 284 (2018); Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227–28 (2014). As explained above, “loss” was used in that context in the 1987 Guidelines. Still, we consider the government’s modern definitions for argument’s sake. 26 USCA4 Appeal: 23-4352 Doc: 46 Filed: 08/23/2024 Pg: 27 of 51

whether “loss” includes intangible losses. Our question is whether “loss” includes purely

intended losses. None of the definitions cited by the government encompass such losses.

At first blush, the government’s third example—“a failure to gain, win, obtain, or

utilize”—sounds the most like an intended loss. But the government’s use of this definition

views the failure to gain from the vantagepoint of the perpetrator. In contrast, the

Guidelines view “loss” from the perspective of the victim. So, the government fails to show

how this definition encompasses purely intended loss in the context of the Guidelines.

Last, the government offered a hypothetical at oral argument in an attempt to show

that “loss” encompasses intended losses. The government asked us to imagine that an

investor purchased $1,000 in stock, and the stock immediately decreased in value to $800.

The government asserted that the investor might describe his stock purchase as a $200 loss

even if he had not yet sold the stock and realized that loss. But there are at least two

problems with this example. First, at the time the stock decreased in value to $800, the

investor would have an actual loss. At that moment, the value of his stock portfolio

decreased. Second, the investor did not intend any loss. So, the government’s hypothetical

does not help resolve the question here—whether “loss” includes harm that a wrongdoer

sought to inflict but did not achieve.

2. Corpus Linguistics

Corpus linguistics—another tool for interpreting the meaning of words in a statute

(or other text)—confirms “loss” is not ambiguous. “Corpus linguistics is the study of

language (linguistics) through systematic analysis of data derived from large databases of

27 USCA4 Appeal: 23-4352 Doc: 46 Filed: 08/23/2024 Pg: 28 of 51

naturally occurring language (corpora, the plural of corpus, a body of language).” Thomas

R. Lee & James C. Phillips, Data-Driven Originalism, 167 U. PA. L. REV. 261, 289 (2019).

In layman’s terms, corpus linguistics clarifies a term’s meaning by studying the term’s use

across specified time periods and origins. “The uses can then be reviewed one by one, in

their context, to determine” the term’s meaning. United States v. Rice, 36 F.4th 578, 583

n.6 (4th Cir. 2022). When the uses are reviewed as a whole, “a broad picture of how a word

or phrase was customarily used and understood during a specific time period can emerge.”

Id.

To conduct a corpus linguistics analysis of “loss,” I consulted one of the online

databases of naturally occurring language, the Corpus of Historical American English

(“COHA”). 5 COHA contains over 475 million words of text derived from fiction, popular

magazines, newspapers, academic texts, and TV and movie subtitles from the 1820s to the

2010s. See Corpus of Historical American English, https://www.english-corpora.org/coha/

[https://perma.cc/HK78-6N95] (last visited July 1, 2024).

I began by searching the term “loss” in COHA. I limited my search results to uses

of the term between 1984 and 1990, the years surrounding the 1987 enactment of the

5 Another valuable database is the Corpus of Contemporary American English (“COCA”). Encompassing sources of contemporary English originating between 1990 and 2019, COCA “contains over one billion words of text . . . from eight genres: spoken, fiction, popular magazines, newspapers, academic texts, TV and movie subtitles, blogs, and other web pages.” Corpus of Contemporary American English, https://www.english- corpora.org/coca/ [https://perma.cc/9JQP-9M42] (last visited Ju1y 1, 2024). But because the Guidelines’ first use of “loss” in the context of sentencing enhancements for economic offenses predates this database’s sources, I did not use COCA here.

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Guidelines, which used “loss” in the context of sentencing enhancements for economic

offenses. See U.S.S.G. §§ 2B1.1(b)(1), 2F1.1 (1987). I obtained 1,434 hits for uses of

“loss” during this time period. I then utilized COHA’s random sample function to pull 100

hits from that total. 6 I reviewed each of the 100 randomly selected hits and found that every

instance of “loss” referred to an actual loss.

For example, the random sample included sixteen hits of newspaper or magazine

sources using “loss” when reporting decreases relating to entities’ revenues. Another

twelve hits consisted of newspaper, magazine, fiction or television sources using “loss” in

the context of a diminution in a physiological or psychological function, such as memory

loss, or the removal of a body part, such as the loss of an ear. Ten hits represented

newspaper, magazine, fiction, academic texts or television sources using “loss” as a

synonym for death. And nine hits represented newspaper or magazine sources referring to

“loss” when reporting the outcome of a given sporting event between two teams. Other hits

within the sample consisted of sources using “loss” when referring to an emotional state,

such as feeling at a loss, or when referring to deprivations or decreases in a variety of other

contexts, such as animals’ loss of habitat or a driver’s loss of license. But none of the hits

referred to intended but unrealized loss. 7

This confirms what we knew at the start. If ordinary speakers of the English

language say “loss,” they mean something that actually occurred. Given its plain and

6 COHA allows a user to retrieve a random sample of 100, 200, 500 or 1,000 results. 7 The random sample I retrieved from COHA is attached to this opinion as an appendix. See Dissent Appendix.

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ordinary meaning, “loss” as used in § 2B1.1(b)(1) means only actual loss. That is how

dictionaries use the term, and that is how people in the real world have used the term, as

confirmed by a corpus linguistics analysis. No matter how you slice it, the ordinary

meaning of “loss” does not encompass intended loss.

Without challenging any specifics of my analysis, the majority dismisses corpus

linguistics generally. It resists my statement that corpus linguistics is another tool for

interpreting words and phrases, asserting that corpus linguistics “is not so benign.” Maj.

Op. at 13 n.5. It adds that corpus linguistics “can be quite a flawed tool; a controversial

tool at best.” Id. And it argues that “corpus linguistics largely ‘ignores the crucial contexts

in which legal language is produced, interpreted, and deployed.’” Id. (quoting Anya

Bernstein, Legal Corpus Linguistics and the Half-Empirical Attitude, 106 CORNELL L.

REV. 1397, 1397 (2021)). Last, the majority concludes that “[a] survey of novels,

magazines, newspapers, popular television shows and movies is no match for legal analysis

of the text, structure, purpose and history of the actual regulation we are considering.” Id.

I recognize that not all academics and jurists have embraced corpus linguistics as an

analytical tool. And I welcome debate on the topic, as healthy and respectful discussion

about important ideas elevates our legal analysis. In that spirit, I respond with a few points.

First, it seems hard to dispute that corpus linguistics is gaining traction as an

interpretive tool. Corpus linguistics finds support in opinions written by former Supreme

30 USCA4 Appeal: 23-4352 Doc: 46 Filed: 08/23/2024 Pg: 31 of 51

Court Justice Breyer and current Justices Thomas and Barrett. 8 Also, a number of state and

federal courts around the country, including this court, have utilized corpus linguistics

when discerning the meaning of disputed terms. 9

But admittedly, popularity does not equate to efficacy. See Stinnie v. Holcomb, 77

F.4th 200, 230 (4th Cir. 2023) (Quattlebaum, J., dissenting) (noting that “as we learned as

children, just because others are doing something, that does not make it right.”), cert.

granted sub nom. Lackey v. Stinnie, 144 S. Ct. 1390 (2024). So, as to the majority’s specific

critique about context, corpus linguistics does not ignore context; it embraces it. In fact,

corpus linguistics, which surveys the various ways speakers and writers actually used the

word or phrase at issue, provides real world examples that reveal how context can inform

meaning. Assume a word or phrase has different meanings depending on the context. A

corpus linguistics search should identify the different contexts in which the word or phrase

8 See Muscarello v. United States, 524 U.S. 125, 129–30 (1998); N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 109–10 (2022) (Breyer, J., dissenting); Carpenter v. United States, 585 U.S. 296, 347 & n.4 (2018) (Thomas, J., dissenting); Moore v. United States, 144 S. Ct. 1680, 1701 (2024) (Barrett, J., dissenting). 9 See, e.g., Rice, 36 F.4th at 583 n.6 (using corpus linguistics to determine the meaning of “strangulation”); Waetzig v. Halliburton Energy Servs., Inc., 82 F.4th 918, 927 n.12 (10th Cir. 2023) (“final proceeding”); Fulkerson v. Unum Life Ins. Co. of Am., 36 F.4th 678, 682–83 (6th Cir. 2022) (“reckless driving”); United States v. Seefried, 639 F. Supp. 3d 8, 13–16 (D.D.C. 2022) (“administration of justice”); Matthews v. Indus. Comm’n of Ariz., 520 P.3d 168, 175–77 (Ariz. 2022) (“injury by accident”); In re Estate of Heater, 498 P.3d 883, 890–91 (Utah 2021) (“natural parent”); State v. Misch, 256 A.3d 519, 529– 30 (Vt. 2021) (“bear arms”); Wilson v. Safelite Grp., Inc., 930 F.3d 429, 439–45 (6th Cir. 2019) (Thapar, J., concurring in part and in the judgment) (“results in” and “extending to”); Richards v. Cox, 450 P.3d 1074, 1079–81 (Utah 2019) (“employment in”); People v. Harris, 885 N.W.2d 832, 839 (Mich. 2016) (“information”).

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is used. That should help a court compare the context of the statute, regulation or contract

at issue with the different contexts identified in the corpus linguistics search.

Professors Lee 10 and Mouritsen have made this same point:

[C]orpus analysis does not take place in an acontextual vacuum. A corpus- based approach to ordinary meaning, as noted, does not simply evaluate which of two competing uses is the most common. Instead, the corpus allows us to examine the use of a word or phrase in a particular syntactic, semantic, or pragmatic context, in the speech or writing of a particular speech community or register, and at a particular point in time…. we are often able to find not only common ways to describe common real-world occurrences, but also the most common ways in which highly particularized and highly contextualized occurrences are described in a given speech community at a given point in time. If there are cases where it is natural to use a particular expression, but the circumstances do not arise often [cite] (internal citations omitted), an appropriately designed corpus search (performed in a sufficiently robust corpus) will help us identify these instances and make informed, evidence-based judgment about them.

Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 YALE L.J. 788,

874–75 (2018) (internal citations omitted). So understood, corpus linguistics does not

ignore context; it is an additional tool to examine it.

To illustrate, take this case. I have provided the context for hits I found in my search

of “loss.” If in certain contexts “loss” includes “intended loss,” one would expect that to

show up in the way ordinary writers and speakers used the word. Here, however, out of the

100 randomly selected examples, none used “loss” to refer to “intended loss.” That

convinces me that if a writer or speaker means intended loss, they pair “loss” with

10 Professor Lee served on the Utah Supreme Court from 2010 to 2022.

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“intended,” “anticipated,” “expected” or some similar adjective. And since § 2B1.1(b) did

not do that, “loss” means “actual loss.”

The majority states that “[a] survey of novels, magazines, newspapers, popular

television shows and movies is no match for legal analysis of the text, structure, purpose

and history of the actual regulation we are considering.” Maj. Op. at 13 n.5. But corpus

linguistics is not a rival to text, structure, purpose or history. In fact, I considered those

factors—in addition to the regulatory context—in my opinion. Instead, corpus linguistics

compliments those considerations, much like dictionaries. The majority’s criticisms of

corpus linguistics could equally be lodged at dictionaries. Yet no one bats an eye at

considering dictionaries to assist in interpreting language. In fact, the majority does so in

its opinion. If our goal is to discern the ordinary public meaning of a word or phrase—as

we all seem to agree it is—examining the ways the public actually used the words and

phrases under consideration is worth a look.

B. Kisor

Perhaps recognizing the weakness of its position on ordinary meaning, the

government contends that we should not confine our interpretation of loss to the plain

meaning of the term. It argues that Kisor v. Wilkie, 588 U.S. 558 (2022) instructs courts to

“carefully consider the text, structure, history, and purpose of a regulation, in all the ways

it would if it had no agency to fall back on.” Id. at 575 (cleaned up). Considering the

structure and purpose of § 2B1.1(b)(1) and the Guidelines as a whole, the government says

“loss” is ambiguous. To the extent that Kisor applies (see infra Part I.C), I disagree.

33 USCA4 Appeal: 23-4352 Doc: 46 Filed: 08/23/2024 Pg: 34 of 51

In Kisor, the Supreme Court explained that “the possibility of deference can arise

only if a regulation is genuinely ambiguous.” 588 U.S. at 573 (emphasis added). A

regulation is genuinely ambiguous only if uncertainty exists “even after a court has resorted

to all the standard tools of interpretation.” Id. (emphasis added). “If uncertainty does not

exist” as to the meaning of a regulation, “there is no plausible reason for deference” to an

agency’s interpretation of it. Id. at 574–75. “The regulation then just means what it means,”

and a court of law must give it effect. Id. That is what we have here. The meaning of the

word “loss” is clear, as confirmed by the application of standard tools of interpretation.

“Loss” means actual losses, not intended ones. Yet, the government asks us to scour the

Guidelines to create an ambiguity that does not exist.

Considering the structure, purpose and history of the Guidelines in addition to the

plain text, there is no genuine ambiguity as to the meaning of “loss” in § 2B1.1(b)(1). For

instance, with respect to the structure of the Guidelines, the government contends that

§ 1B1.3—the Guideline that defines relevant conduct for all offenses—supports finding

“loss” as used in § 2B1.1(b)(1) to be ambiguous. “Unless otherwise specified,” § 1B1.3

directs courts to determine a defendant’s base offense level based on, among other things,

“all harm that resulted from the acts and omissions . . . and all harm that was the object of

such acts and omissions.” U.S.S.G. § 1B1.3(a)(3). Because “loss” in § 2B1.1(b)(1) is the

“harm” for this criminal conduct, the government insists that § 1B1.3 directs that we

consider both the “harm that resulted from” the criminal acts (actual loss) and “all harm

that was the object” of the criminal acts (intended loss). Id.

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But a look at other portions of the Guidelines undermines this position. Consider

§ 2T1.1, the Guideline for determining the base offense level for tax evasion. Section

2T1.1(c)(1) itself defines “tax loss” as “the total amount of loss that was the object of the

offense (i.e., the loss that would have resulted had the offense been successfully

completed).” If § 1B1.3’s directive to consider the harm that was the object of an offense

when determining base offense levels is understood to expand the meaning of “loss” in the

Guidelines governing base offense levels, § 2T1.1(c)(1)’s definition of “tax loss” would be

superfluous. There would be no need to define “tax loss” to include the loss that was the

object of the offense because, if the government was right, § 1B1.3 would already require

the consideration of that sum, unless otherwise specified. I would not interpret the

Guidelines in a way that renders portions superfluous. See United States v. Haas, 986 F.3d

467, 479 (4th Cir. 2021) (applying canon against superfluity when interpreting Guidelines

provision). So, in my view, § 1B1.3’s directive regarding the consideration of harm does

not expand the meaning of “loss” as used in § 2B1.1(b)(1). 11

11 The majority reasons that § 1B1.3(a)’s “[u]nless otherwise specified” language leads to a different conclusion. According to the majority, § 1B1.3(a) instructs sentencing courts as to how to interpret “harm” as used throughout the Guidelines when the definition of harm is not “otherwise specified.” So, § 2T1.1(c)(1)’s definition of “tax loss” as “the total amount of loss that was the object of the offense” is simply an example of an otherwise specified situation. Thus, there is no superfluity. But “otherwise” suggests different. And § 2T1.1(c)(1)’s definition of “tax loss” is not different from the government’s reading of § 1B1.3(a); it is the essentially same and, in my view, would not be needed—and thus is rendered superfluous—if the government’s reading of § 1B1.3(a) supports its interpretation of § 2B1.1(b)(1).

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As for the purpose of the Guidelines, the majority is correct that the Sentencing

Commission promulgated the Guidelines to “avoid[] unwarranted sentencing disparities

among defendants with similar records who have been found guilty of similar criminal

conduct.” 28 U.S.C. § 991(b)(1)(B). But I disagree with the majority’s view that limiting

“loss” in § 2B1.1(b)(1) to actual losses would result in unwarranted sentencing disparities.

Maj. Op. at 18. In the majority’s view, “defendants with equal culpability for the same

criminal acts would receive longer sentences merely because, for one reason or another,

one succeeded in carrying out their fraudulent scheme while the other did not.” Maj. Op.

at 18. Such sentencing disparities for basic economic offenses, however, are not

unwarranted. Consider two individuals who each intend to obtain $1,000,000 in fraudulent

bank transfers. One individual successfully obtains $1,000,000, while the other individual

only obtains $1,000. Despite their identical intentions, they did not cause identical financial

injuries. Both are guilty of committing the same substantive offense, but applying different

sentencing enhancements under § 2B1.1(b)(1) based on the actual losses they caused does

not result in an unwarranted sentencing disparity. Quite the opposite; the differing financial

injuries is what warrants the application of different sentencing enhancements.

Also, the Sentencing Commission created the Guidelines to “provide certainty and

fairness in meeting the purposes of sentencing.” 28 U.S.C. § 991(b)(1)(B). Basing the

application of § 2B1.1(b)(1) enhancements on intended losses—but only if greater than

actual losses—promotes neither certainty nor fairness. With respect to certainty, a

defendant is left to wonder how a court will calculate his subjective intended loss. As for

fairness, few would find it fair to apply the same loss enhancement to two individuals who

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caused vastly different financial injuries. So, like the structure of the Guidelines, the

purpose of the Guidelines supports reading “loss” in § 2B1.1(b)(1) to mean actual loss.

Finally, the Guidelines’ history supports this reading, as well. When the Guidelines

were first enacted in 1987, the application of § 2B1.1(b)(1)’s loss enhancement was limited

to offenses of “Larceny, Embezzlement, and Other Forms of Theft.” U.S.S.G.

§ 2B1.1(b)(1) (1987). Under this initial version of § 2B1.1(b)(1), “[i]f the value of the

property taken exceeded $100,” a court was to increase a defendant’s offense level based

on the amount of “Loss.” Id. Separately, the 1987 version of § 2F1.1(b)(1) provided the

loss enhancement for offenses involving “Fraud and Deceit.” U.S.S.G. § 2F1.1(b)(1)

(1987). Contrary to § 2B1.1(b)(1), § 2F1.1(b)(1) explicitly instructed courts to apply

sentencing enhancements for offenses involving fraud and deceit “[i]f the estimated,

probable or intended loss exceeded $2,000.” Id. (emphasis added).

In 2001, the Sentencing Commission amended the Guidelines, deleting § 2F1.1

entirely and amending § 2B1.1 to encompass basic economic offenses beyond larceny,

embezzlement and other forms of theft. See U.S.S.G. § 2B1.1 (2001). As such,

§ 2B1.1(b)(1)’s loss enhancement applied to what § 2F1.1(b)(1)’s loss enhancement once

covered—offenses involving fraud and deceit. See id. Yet, in deleting § 2F1.1(b)(1) and

amending § 2B1.1(b)(1), the Sentencing Commission did not include any “intended loss”

language in § 2B1.1(b)(1). Instead, the amended version of § 2B1.1(b)(1) instructed courts,

“[i]f the loss exceeded $5,000, increase the offense as follows . . . .” U.S.S.G.

§ 2B1.1(b)(1) (2001). Aside from increases in the monetary amount, this wording has lived

on in subsequent versions of the Guidelines. Indeed, as previously noted, it is the language

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of the version at issue in this case and the present version. See U.S.S.G. § 2B1.1(b)(1)

(2021) and id. (2023).

Since-deleted § 2F1.1(b)(1) demonstrates that the Sentencing Commission has

previously specified in the text of a Guideline when “loss” encompasses intended loss. The

Sentencing Commission’s use of “intended loss” in § 2F1.1(b)(1) and only “loss” in

§ 2B1.1(b)(1) in early versions of the Guidelines should be presumed intentional. Cf.

Russello v. United States, 464 U.S. 16, 23 (1983) (explaining that when “Congress includes

particular language in one section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally and purposely in the disparate

inclusion or exclusion.” (internal quotations omitted)). Even after deleting § 2F1.1(b)(1)

and expanding § 2B1.1(b)(1) to cover what § 2F1.1(b)(1) once did, the Sentencing

Commission never amended the text of § 2B1.1(b)(1) to instruct courts to consider

intended losses. This history of the Guidelines therefore also supports reading “loss” in

§ 2B1.1(b)(1) to encompass only actual losses.

C. Campbell and Moses

Last, we need not wade into the question of whether United States v. Campbell,

22 F.4th 438 (4th Cir. 2022) and United States v. Moses, 23 F.4th 347 (4th Cir. 2022)

conflict with respect to how Kisor and Stinson v. United States, 508 U.S. 36 (1993) apply

to Guideline interpretation. That is because under either Kisor or Stinson, the

commentary’s interpretation of loss is not entitled to deference. Because “loss” as used in

§ 2B1.1(b)(1) is not genuinely ambiguous, Kisor would preclude deference to the

commentary’s interpretation of the term. See 588 U.S. at 573 (holding that “the possibility

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of deference can arise only if a regulation is genuinely ambiguous”). And because the

commentary’s interpretation of “loss” to include intended loss is “plainly erroneous or

inconsistent with” § 2B1.1(b)(1)’s use of the term, Stinson would likewise preclude

deference. 508 U.S. at 45; see also id. at 38 (holding that commentary “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”). So, regardless of

whether Stinson or Kisor governs our analysis, “loss” in § 2B1.1(b)(1) still means what it

is commonly understood to mean—actual loss. It does not include losses a wrongdoer

intended, but failed, to cause.

Of course, the Sentencing Commission has every right to define “loss” to include

intended losses, notwithstanding the way the word is commonly understood. But it has only

defined the term to include intended loss in the commentary to § 2B1.1(b)(1). Unless and

until it does so in § 2B1.1(b)(1) itself, we should not defer to the commentary’s definition.

The term “loss” as used in § 2B1.1(b)(1) unambiguously means actual losses. It does not

include purely intended losses.

For the foregoing reasons, I would vacate Boler’s sentence and remand for

resentencing. I respectfully dissent.

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Dissent Appendix

Year Source Type and Excerpt of Concordance Line Source 1 1986 Magazine: . . . replace what diuretics caused to be lost, but Saturday Evening Post only recently have researchers considered (May/June) magnesium loss to be a problem.” Patients with low serum magnesium, regardless of the . . . 2 1988 Fiction: . . . you. And I’m tired of being used…(at Mystic Pizza movie a loss) like a sex machine. BILL has had it. He script gently pushes her . . . 3 1986 Magazine: . . . of up to $100 for speeding at 65 mph, with Newsweek (“Does penalty points toward a loss of license and a Speed Kill?” by Larry notice to insurers that can cost money at Martz) renewal time . . . 4 1986 Newspaper: . . . financial statements every year since 1981. Wall Street Journal For 1985, Raymark posted a net loss of $18.2 (Apr. 11) million on sales of $112.4 million. The company, previously . . . 5 1986 Fiction: . . . So how bad was your damage?” “She may Red Storm Rising by be a total loss, sir. It was a Victor. We took one Tom Clancy hit in the bow . . . 6 1985 Fiction: . . . unto victory, he lay down that night still Depths of Glory by aching. Nor was it the loss of his ear that Irving Stone caused this aching. It was the Wee Widow Mouse. . . . 7 1990 Newspaper: . . . year has been a tougher grind. He has lost USA Today (Dec. 26) 20 pounds. After the loss to BYU, he would wake up in cold sweats. He maintains he is . . . 8 1985 Magazine: . . . action that labor leaders said would further U.S. News and World weaken their power. But business took Report (“Supreme a loss when the Court declared them subject to Court Shows civil lawsuits accusing them of conspiring to Independent Streak” violate . . . by Ted Guest)

40 USCA4 Appeal: 23-4352 Doc: 46 Filed: 08/23/2024 Pg: 41 of 51

9 1989 Fiction: . . . Madoc noticed. “But Wilhelm was a Trouble in the Brassessuperb French-horn player and I regret his loss, by Alisa Craig not at all for myself but for the world of music, you understand . . . 10 1986 Fiction: . . . every art and know the Ways of all Wielding a Red Sword professions; to distinguish between gain by Piers Anthony and loss, develop intuitive judgment, perceiving what could not be seen; to pay attention even to . . 11 1990 Magazine: . . . of the Berlin Wall was due not to strategic Time (Mar. 9) planning, but to a sudden loss of nerve. A single ambiguous sentence uttered at a press conference, a mere . . . 12 1988 Fiction: . . . couldn’t get at him any other way, and they Catspaw by Joan D. figured, no big loss if he found out the truth and Vinge killed a few freaks….” She blinked . . . 13 1988 Fiction: . . . her agony and Kris’ (still rawly part of her), Arrow’s Fall by all her loss, all her hatred, and hurled them into Mercedes Lackey his unprotected mind in a blinding instant . . . 14 1989 Magazine: . . . are forged by the hammers of international National Geographic economics. The 1983 oil-price collapse brought (Jan.) the loss of 28 percent of government revenues. Suharto slashed the budget, instituted sweeping tax . . . 15 1987 Nonfiction/Academic: . . . the West Coast firm if there were no more The Fall of the Bell System. By comparison, the loss of the vertical System by Peter Temin elements, Bell Labs and Western Electric, with Louis Galambos would cripple AT in . . . 16 1984 Nonfiction/Academic: . . . self-reflexivity? apparently over and done The Invented Reality: with for Beckett personally? is correlated to How Do We Know the loss, which had long since taken place in What We Believe We other disciplines, of the belief that . . . Know? by Paul Watzlawick (Editor) 17 1987 Magazine: . . . U.S. and Britain might rejoin the agency, Time (Oct. 5) whose programs have been crippled by the loss of Washington’s $48 million annual

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contribution. But that possibility seemed more remote . . . 18 1989 Fiction: . . . of these welds, the way he polished this The Minotaur by forging with acid to minimize heat loss. Look Stephen Coonts here! See how he built this to maximize cooling and shorten the . . . 19 1989 Magazine: . . . lords of Irian Jaya. We are losing our own National Geographic province.” The first loss is the land. For 30 (Jan.) miles along the corkscrew road from tiny Sentani Airport . . . 20 1990 Magazine: . . . tack can be disastrous. Not only do drug Black Enterprise abusers cost the company money in loss of (July) productivity and increased medical benefits, but many may be endangering the lives of . . . 21 1989 TV Series: . . . been born in ‘53 and lived in the future. Quantum Leap Then this whole memory loss thing is another one of their hoaxes. I’m afraid so. Well, . . . 22 1984 Fiction: . . . unless it had to do with that peculiar Alien Cargo by attitude of resignation about his imagined loss Theodore Sturgeon of command. “What the hell?” I wanted to know. . . . 23 1990 Newspaper: . . . clinch wild card with two victories, plus USA Today (Dec. 20) one loss by Cincinnati, or Pittsburgh loss to Cleveland, or two losses by Kansas City, based on win against Houston . . . 24 1985 Nonfiction/Academic: . . . again in quite the same way. Opportunities The Sense of Sight by can be irretrievably lost and then their loss is John Berger like a death. When the Russian tanks entered Prague in August 1968 Ernst . . . 25 1987 Newspaper: . . . true true) e stan jus lokka dis. Wen one a Christian Science oona fin you loss sheep, oona fa make merry. Monitor (“New Bible Same feshion, all dem wa een Hebn . . . Translation; Keeping Ancestral Language Alive” by Trip DuBard (Mar. 16))

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26 1988 Fiction: . . . if he’d had to wait for an ambulance he Crown of Stars by might well have died from loss of blood. I can James Tiptree, Jr. assure you, Mr. George, that this sort of . . . 27 1986 Nonfiction/Academic: . . . hard to raise in sufficient amounts in Economics in Plain periods of strain at home over English by Leonard unemployment, loss of export markets, and Silk resentment toward growing imports, problems that were all intensified . . . 28 1988 Nonfiction/Academic: . . . Well, it’s a start, you’re no longer at a loss. The Electronic Did you take a look at Datanet? Some of Len’s Sweatshop: How clients follow . . . Computers are Transforming the Office of the Future into the Factory of the Past by Barbara Garson 29 1989 Newspaper: . . . a seven-run fifth inning and Minnesota won New York Times its fifth consecutive game. Seattle’s loss was its (Aug. 28) 11th in a row. // The Mariners are one defeat short of their . . . 30 1988 Fiction: . . . to be wrong. Had to be. Zoya knew she “E” is for Evidence would not survive another loss. She just by Sue Grafton couldn’t face it. “I’ll do everything I can . . . 31 1989 Magazine: . . . House Republicans and renegade Time (Oct. 9) Democrats jumped at a short-term boost in revenues against a long-term loss. The giveaway fractured the foundation of the landmark 1986 tax-reform law. The drain . . . 32 1989 Nonfiction/Academic: . . . farmers left cattle overnight in unprotected The Endangered pastures frequented by wolves. The total Animal Kingdom: The average annual loss of livestock to wolves in Struggle to Save Minnesota is about five head of cattle and a America’s Wildlife by dozen . . . Roger L. Disilvestro 33 1985 Nonfiction/Academic: . . . Defending China was under threat. A missed opportunity that went wrong (the loss of

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Defending China by a window for taking Taiwan), was not as bad as Gerald Segal the necessity . . . 34 1984 Newspaper: . . . In the year-earlier second quarter, European Wall Street Journal American earned $10.2 million. The loss also (July 11) caused the six parent banks to add $80 million in capital to European American . . . 35 1990 Newspaper: . . . Kansas City Bears have clinched division USA Today (Dec. 20) title, based on overall record; one more loss (home vs. Tampa Bay, home vs. Kansas City) or a . . . 36 1990 Magazine: . . . Most of the consequences of sanctions were History Today (Sept.) unintended. While privileged whites suffered a loss of perhaps ten Rhodesian dollars per capita per annum, most of the hardships were . . . 37 1986 Magazine: . . . and movies are evil. It’s not true. Writing is Newsweek writing.” Loss of control: Still, for most (“Broadway Goes to playwrights there is one big drawback in the Movies” by David movie . . . Ansen) 38 1986 Newspaper: . . . sweeping sales incentives, GM’s costs Wall Street Journal caused it to post a third-period operating loss. (Jan. 10) Ford and Chrysler had operating profits despite offering similar incentives. The current round . . . 39 1990 Newspaper: . . . be in the hunt for another title. Sullivan USA Today (Dec. 26) again, recalling the 29-20 loss to Notre Dame: “I thought the chance for No. 1 was dead, . . . 40 1985 TV Series: . . . How terribly painful it must be. There’s Dallas no... No explaining the loss of a child. I’m not looking for explanations. The only thing that . . . 41 1985 Newspaper: . . . unprofitable for the past 2 1/2 years. In Wall Street Journal 1984, it had an operating loss of $73.1 million; (Oct. 11) in this year’s first half it had an . . . 42 1984 Magazine: . . . Parkinson’s disease and often respond to anti-Parkinson’s disease medication. The 44 USCA4 Appeal: 23-4352 Doc: 46 Filed: 08/23/2024 Pg: 45 of 51

Saturday Evening Post symptoms include loss of coordination, slurred, (Sept.) “cog wheel” speech, a shuffling gait and . . .

43 1986 Magazine: . . . manuscript -- burned again! What they Time (Oct. 13). confiscated on the train was the fourth loss. There were others to come. So don’t be surprised that I call . . . 44 1988 Newspaper: . . . poll of voters. They said their support was New York Times undiminished by Mr. Jackson’s loss last week (Apr. 27) in New York to Mr. Dukakis or by the large lead that pollsters . . . 45 1990 Magazine: . . . B-2 would mean the demise of its builder, Time (Aug. 6) the Northrop Corp., and the loss of at least 12,000 jobs. . . . 46 1989 Fiction: . . . children; she can’t give up her shame that it The Other Side by was through her this loss came about. Every Mary Gordon year, the girls come for August and life is different . . . 47 1984 Fiction: . . . were quick to take advantage of their sacred The Sicilian by Mario liberties. They would all regret the loss of Puzo Mussolini, the Maresciallo thought grimly. Compared with the Friends of the Friends . . . 48 1989 Newspaper: . . . not participate in the 1989 price and income Chicago Tribune support programs will have to absorb a loss of (Aug. 15) half of their normal production before they receive any payment. Soybean producers must . . . 49 1986 Newspaper: . . . didn’t do as well as I expected. They had a Wall Street Journal higher-than-expected loan loss provision, and (Apr. 11) non-interest expenses rose 12%.” Chemical New York had a gain . . . 50 1990 Magazine: . . . estrogen levels taper off quite slowly after Newsweek (Aug. 6) menopause. Their bodies partially compensate for the loss by converting the male hormone androgen (present in all women) to estrogen. . . .

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51 1986 Newspaper: . . . seal the seam where the two bottom Chicago Tribune (Feb. sections of the booster were joined. A loss of 15) elasticity from the cold could have allowed hot rocket exhaust gases to escape through . . . 52 1987 Fiction: . . . he heard himself shouting, “let’s not lose Confessions of Johnny any more!” The loss of the horses meant the Ringo by Geoffrey loss of their only apparent means of escape. Aggeler Even . . . 53 1984 Magazine: . . . truly devastating disorder that costs our Saturday Evening Post country about $10,000,000,000 in terms of (Sept.) medical care and loss of productivity. Since the disease is characterized by premature morbidity and mortality, covers . . . 54 1990 Magazine: . . . Or, they maintain, given the subtle Wilderness (Summer) interactions among species, the loss of even one apparently insignificant species may have unexpected (and disastrous) ramifications that . . . 55 1989 Magazine: . . . make up the last two sections of Human The Nation (Dec. 11) Wishes, he traces pleasures and their loss? in love, in family life, in the living world? with intelligence . . . 56 1986 Fiction: . . . to Ben Yehuda Street until the world has Shattered Silk by opportunity to weep with us over the loss of Barbara Michaels Arab lives.” “What do you mean, your excellence?” . . . 57 1985 Newspaper: . . . Phoenix’s Alvan Adams goes up for two Chicago Tribune points in the Suns’ 108-101 loss to Atlanta (Nov. 15) Wednesday night. . . . 58 1984 Magazine: . . . Under Social Security regulations, workers Time (Sept. 10) with serious injuries, like the loss of two limbs, seldom have difficulty proving that they are entitled to disability payments . . . 59 1989 Newspaper: . . . first week of next month, the company said. Wall Street Journal Despite the charge and expected loss for the (Oct. 11) quarter, the company’s preliminary fourth- quarter report struck a positive note . . .

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60 1986 Fiction: . . . I see misfortune, sorrow in your past.” Bartholomew Fair “Oh.” “Loss, death of children.” “Only one of Murders by Leonard my children lived,” . . . Turney 61 1987 Magazine: . . . That is what Cendra Lynn, a psychologist The Nation (Oct. 31) who specializes in grief and loss, wrote in the reunion’s “yearbook” a word processor that took . . . 62 1984 Nonfiction/Academic: . . . diet in a meal form rather than pelletized. Farm Animals by The reasons for differences in weight loss and Michael W. Fox shrinkage between those fed meal or pellets is not known. . . . 63 1988 Fiction: . . . Right. She got home in August, minus “E” is for Evidence Julian, which is no big loss. He was a dud if I by Sue Grafton ever saw one. A real bore. . . . 64 1986 TV Series: . . . have such a beautiful face to look at, the The A-Team evening would be a total loss. (croupier speaking FRENCH) Monsieur Jourdan wins again. What took you? Murdock’s . . . 65 1985 Fiction: . . . threaten him half as much as the danger Texas by James A. which hung over the Macnabs: the loss of their Michener entire investment. What you do, Templeton, is what we’ve . . . 66 1987 Nonfiction/Academic: . . . essence of engineering rationality a The Civilized recognition of its proper limits. | Risk and the Engineer by Samuel Loss of Challenger No discussion of C. Florman engineering and risk would be complete without reference to one . . . 67 1987 Fiction: . . . it almost shone. “I did not mean to be the Out of Phaze by Piers agent of your loss of woman.” Loss of woman? Anthony That must refer to the way Mach . . . 68 1989 Fiction: . . . white inner surface of her wrist, that made The Joy Luck Club by her seem distracted, at a loss. Her hair was still Amy Tan fairly long but she had done something to it that ...

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69 1987 Newspaper: . . . its problems with Cessna. A company Wall Street Journal spokesman said the write-off will result in a (Jan. 9) loss for the fourth quarter. In the 1985 fourth quarter, General Dynamics had net . . . 70 1985 Nonfiction/Academic: . . . hosts. Halfdan, they knew, was slain, and German Myths and that the gods had loss of power because that Legends by Donald A. Idun had been taken away. Icy arrows were MacKenzie shot over . . . 71 1988 Newspaper: . . . executive recruiters. . . . A Carnegie Mellon Wall Street Journal University researcher says that depressed- (Oct. 11) worker loss estimates of up to $13 billion a year in lost workdays ignore lower on-the-job productivity . . . 72 1987 Magazine: . . . More important, for reasons that are not yet Time (Feb. 23) known, menopause speeds up bone loss. Osteoporosis is the excessive form of this natural process. An extreme consequence . . . 73 1990 Newspaper: . . . can claim third wild card with two victories USA Today (Dec. 21) plus two losses by Dallas and one loss each by Green Bay and Tampa Bay. Minnesota would win tiebreaker with Saints, . . . 74 1990 Magazine: . . . As it turns out, the chance of recovering Washington Monthly even some of the loss is less than one in four. In (Nov.) NYSE arbitrations, customers win 50 percent . . . 75 1986 Newspaper: . . . Americans work on such projects out of a Wall Street Journal sense of civic duty. While the loss of a key (July 11) person can be inconvenient, not even the most zealous antiwar advocates . . . 76 1989 Fiction: . . . so they aren’t popular with other couples. The Other Side by Dan will never get over the loss of his children; Mary Gordon she can’t give up her shame that it was through . . . 77 1987 Movie: . . . a veterans hospital he contracted spinal Suspect meningitis, became deaf and suffered a traumatic speech loss. We will show that Carl

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Anderson lived in a world where $9.00 could mean . . . 78 1990 Magazine: . . . could be stifled by rigid rules and assaulted U.S. News and World by rebellious taxpayers. Businesses fear the Report (Oct. 29) loss of competitiveness against foreign companies that do not have to clean up their wastes or . . . 79 1987 Newspaper: . . . retreated into their own world, content in New York Times their isolation, but concerned about its loss of (June 28) vitality. // Nevertheless, while traditionalists dreamed of the past, those seemingly disparate . . . 80 1990 Magazine: . . . heading of retinitis pigmentosa. These Science News (Sept. range from barely perceptible (and frequently 15) undiagnosed) loss of vision to potentially deadly syndromes with symptoms such as blindness, deafness and mental . . . 81 1987 Magazine: . . . for the foundation and walls, that the $191 U.S. News and World million structure may be a total loss and need to Report (“How to be destroyed. Any hope that the new embassy Protect U.S. was not completely . . . Embassies” by William L. Chaze) 82 1985 Magazine: . . . to be making a move toward its first Pac-10 Sports Illustrated title, but a 14-13 nonconference loss to (Oct. 7) Colorado has left the Wildcats up a tree. The Buffaloes threw just four . . . 83 1985 Fiction: . . . fifteen minutes or so earlier. In addition, Wishsong of Shannara partly to make up for the loss in technical by Terry Brooks assistance that the departure of the troops would entail, more technicians and . . . 84 1984 Magazine: . . . the people was in the people’s hands. This Harper’s BAZAAR was considerably more than a loss of the party (July) potentates’ power. It was a dire menace to the entire . . .

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85 1984 Fiction: . . . find out. He is part of us.” Gosten was upset The Grey Beginning about the loss of his son. “I can not imagine by Barbara Michaels him just jumping off a cliff! . . . 86 1985 Nonfiction/Academic: . . . and flew forth towards the dominion of German Myths and Thjasse-Volund in the bird-guise of Freyja. Legends by Donald A. The loss of ldun had dread effect in Midgard as MacKenzie in Asgard. Cold winds blew from . . . 87 1989 Newspaper: . . . strikes were blamed for a drop in London New York Times box-office receipts. Trying to combat that loss, (Aug. 28) box-office personnel in at least one theater were told to lie when asked if . . . 88 1985 TV Series: . . . marred by an extraordinary event. Security Misfits of Science officers and plant officials are still at a loss to explain the security breach by three people believed to be in their eighties who . . . 89 1990 Magazine: . . . year in a row; premium and interest income Time (Aug. 27) of $3 billion will cut the loss to $2 billion, leaving a total of $11 billion in the fund. Although . . . 90 1986 Newspaper: . . . His political leanings were the most Christian Science controversial aspect of his life and resulted in Monitor (June 13) the loss of at least one commission - a mural at Rockefeller Center in which he had . . . 91 1987 Nonfiction/Academic: . . . nuclear power and aid to third world Information countries has had highly undesirable and Technologies and unpredicted consequences: loss of soil Basic Learning by The nutrients, pollution of water tables, radiation Center for Educational from nuclear accidents, and . . . Research and Innovation 92 1988 Magazine: . . . The initial diagnosis was “alopecia areata” Good Housekeeping or “just a small hair loss.” But at some point? I (Apr.) honestly can’t remember when? It . . . 93 1985 Newspaper: . . . The party selling the 800,000 shares at the Wall Street Journal lower price realized a loss of $322,000. That’s (Oct. 11) the same amount as the dividend payment . . .

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94 1986 Magazine: . . . grains. // Johnson’s imaginative creation of Sports Illustrated habitat stands out in a region where loss of (June 30) habitat has been the custom. In Jersey City, a colony of 100 . . . 95 1985 Movie: . . . don’t bounce the ball. When it came to Fletch basketball, Gail was a loss. But we had our own version of one-on-one . . . and she thought I was . . . 96 1985 Nonfiction/Academic: . . . of the PLA were more involved in political Defending China by control tasks and were disturbed at the loss of Gerald Segal their political influence in a purely professional military. In the late 1950s Peng . . . 97 1984 Fiction: . . . shirt sleeve and said indignantly, “My The Grey Beginning shirt’s torn.” “Small loss,” I said, eyeing the by Barbara Michaels faded garment. Out of the corner of . . . 98 1989 Magazine: . . . babies. He explains, “The mind can be so Good Housekeeping shell-shocked by the first loss that there is a (Apr.) need to work through the grief by recreating the experience. . . . 99 1984 Newspaper: . . . NEW YORK -- European American Wall Street Journal Bancorp posted a $137.7 million loss in the (Jul. 11) second quarter, among the largest quarterly losses ever for a U.S. bank . . . 100 1990 Newspaper: . . . off bus vs. Steelers, still smarting from USA Today (Nov. 23) lashing at Cincinnati. Steelers consider loss to Bengals a minor hiccup in drive to the playoffs after 1-3 start. Steelers . . .