FILED NOT FOR PUBLICATION FEB 25 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-4196
Plaintiff - Appellee, D.C. No. 1:21-cr-00099-SOM-1 v.
FELIX THAXTON, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court for the District of Hawaii Susan O. Mollway, District Judge, Presiding
Argued and Submitted February 12, 2025 Honolulu, Hawaii
Before: S.R. THOMAS, BRESS, and DE ALBA, Circuit Judges.
Felix Thaxton appeals the sentence imposed on him after his guilty plea to
knowingly and intentionally possessing with intent to distribute methamphetamine.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Because the
parties are familiar with the facts and history of this case, we need not recount
them here.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. I
Thaxton raises several challenges to the district court’s application of the
premises enhancement, U.S.S.G. § 2D1.1(b)(12). The enhancement adds two
levels “[i]f the defendant maintained a premises for the purpose of manufacturing
or distributing a controlled substance.” Id. The Guidelines commentary
elaborates:
Manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s incidental or collateral uses for the premises. In making this determination, the court should consider how frequently the premises was used by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes.
U.S.S.G. § 2D1.1 cmt. n.17.
A
Thaxton first argues that the district court erred by deferring to the
Guidelines commentary without first determining that such deference was
appropriate under Kisor v. Wilkie, 588 U.S. 558 (2019). Under Kisor, when
interpreting a Guidelines provision, a court may only defer to the commentary
when such deference meets the Kisor standard. United States v. Castillo, 69 F.4th
648, 655 (9th Cir. 2023). Thaxton did not raise this objection before the district
2 court, so we review for plain error. United States v. Sandoval-Orellana, 714 F.3d
1174, 1180 (9th Cir. 2013). To show plain error, Thaxton must show (1) error that
(2) is clear or obvious (3) affected Thaxton’s substantial rights and (4) seriously
affected the fairness, integrity, or public reputation of the judicial proceedings. See
Puckett v. United States, 556 U.S. 129, 135 (2009). Even if plain error did not
apply, we would reject Thaxton’s challenge under any standard.
The district court did not commit reversible error in not conducting a Kisor
analysis because the record demonstrates that the Kisor standard was satisfied in
this case. Therefore, there was no reversible error, plain or otherwise. Kisor has
three requirements. First, the regulation—here, the Guidelines provision—must be
“genuinely ambiguous after exhausting all the traditional tools of construction.”
United States v. Trumbull, 114 F.4th 1114, 1118 (9th Cir. 2024) (simplified)
(quoting Kisor, 588 U.S. at 574–79). Second, the agency’s interpretation—here,
the Guidelines commentary—must be “reasonable.” Id. Finally, “the character
and context of the agency interpretation” must “entitle[] it to controlling weight.”
Id. Each requirement is met here.
The first Kisor requirement is satisfied because the “for the purpose of”
clause in the premises enhancement is “genuinely ambiguous.” Kisor, 588 U.S. at
574. The phrase “for the purpose of” is ambiguous because it has a spectrum of
3 possible meanings. Indeed, we note that when examining identical text in 21
U.S.C. § 856(a)(1)—the criminal statute that § 2D1.1(b)(12) was modeled
after—we reasoned that the phrase is susceptible to “various formulations,”
“between the poles of ‘incidental use’ and ‘sole purpose.’” See United States v.
Shetler, 665 F.3d 1150, 1161 (9th Cir. 2011).
The second Kisor requirement is satisfied because the commentary is a
reasonable interpretation of the Guidelines. An agency’s interpretation is
reasonable if it “come[s] within the zone of ambiguity the court has identified after
employing all its interpretive tools.” Kisor, 588 U.S. at 575–76. Here, the
commentary’s interpretation—“one of the defendant’s primary or principal uses,”
U.S.S.G. § 2D1.1, cmt. n.17—is reasonable because it falls within the “zone of
ambiguity” between “incidental use” and “sole purpose.”
The final Kisor requirement is also satisfied. This requirement “does not
reduce to any exhaustive test,” but the Supreme Court has provided three
“especially important markers” for determining when it is satisfied, Kisor, 588
U.S. at 576–77: “(i) the interpretation is the agency’s official position, rather than
any more ad hoc statement not reflecting the agency’s views; (ii) the interpretation
implicates the agency’s substantive expertise; and (iii) the interpretation reflects
4 the agency’s fair and considered judgment.” Trumbull, 114 F.4th at 1118
(simplified) (citing Kisor, 588 U.S. at 574–79).
The commentary here satisfies all of those criteria. First, the commentary is
the Commission’s official position, issued by the Commission itself. Id. at 1120.
Second, when the commentary interprets ambiguous terms in the Guidelines, as it
does here, it is within the Commission’s scope of authority: to “establish
sentencing policies and practices for the [f]ederal criminal justice system.” Id.
(alteration in original) (quoting 28 U.S.C. § 991(b)(1)). Finally, the commentary
represents the Commission’s “fair and considered judgment” rather than just a
convenient litigating position, because it was issued in advance of litigation and
after a considered process. See id. at 1120–21.
B
Thaxton argues in the alternative that it was error to find that drug
distribution was a primary or principal use of Thaxton’s home. Because this is a
factual determination, we review for clear error. United States v. Harris, 999 F.3d
1233, 1235 (9th Cir. 2021).
Here, it was not clear error to find that drug distribution was one of
Thaxton’s primary or principal uses of his apartment. There was evidence that
5 Thaxton initially moved to his apartment for the purpose of distributing drugs: He
admitted that he moved there to be closer to his drug contacts.
There was evidence that Thaxton used his apartment to distribute drugs. He
“cut” drugs there, and there was a confirmed sale of drugs in the apartment. The
frequency of this unlawful use was likely high: He received drugs weekly, and
“provided his source of supply with between $50,000 and $250,000 in drug
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FILED NOT FOR PUBLICATION FEB 25 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-4196
Plaintiff - Appellee, D.C. No. 1:21-cr-00099-SOM-1 v.
FELIX THAXTON, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court for the District of Hawaii Susan O. Mollway, District Judge, Presiding
Argued and Submitted February 12, 2025 Honolulu, Hawaii
Before: S.R. THOMAS, BRESS, and DE ALBA, Circuit Judges.
Felix Thaxton appeals the sentence imposed on him after his guilty plea to
knowingly and intentionally possessing with intent to distribute methamphetamine.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Because the
parties are familiar with the facts and history of this case, we need not recount
them here.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. I
Thaxton raises several challenges to the district court’s application of the
premises enhancement, U.S.S.G. § 2D1.1(b)(12). The enhancement adds two
levels “[i]f the defendant maintained a premises for the purpose of manufacturing
or distributing a controlled substance.” Id. The Guidelines commentary
elaborates:
Manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s incidental or collateral uses for the premises. In making this determination, the court should consider how frequently the premises was used by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes.
U.S.S.G. § 2D1.1 cmt. n.17.
A
Thaxton first argues that the district court erred by deferring to the
Guidelines commentary without first determining that such deference was
appropriate under Kisor v. Wilkie, 588 U.S. 558 (2019). Under Kisor, when
interpreting a Guidelines provision, a court may only defer to the commentary
when such deference meets the Kisor standard. United States v. Castillo, 69 F.4th
648, 655 (9th Cir. 2023). Thaxton did not raise this objection before the district
2 court, so we review for plain error. United States v. Sandoval-Orellana, 714 F.3d
1174, 1180 (9th Cir. 2013). To show plain error, Thaxton must show (1) error that
(2) is clear or obvious (3) affected Thaxton’s substantial rights and (4) seriously
affected the fairness, integrity, or public reputation of the judicial proceedings. See
Puckett v. United States, 556 U.S. 129, 135 (2009). Even if plain error did not
apply, we would reject Thaxton’s challenge under any standard.
The district court did not commit reversible error in not conducting a Kisor
analysis because the record demonstrates that the Kisor standard was satisfied in
this case. Therefore, there was no reversible error, plain or otherwise. Kisor has
three requirements. First, the regulation—here, the Guidelines provision—must be
“genuinely ambiguous after exhausting all the traditional tools of construction.”
United States v. Trumbull, 114 F.4th 1114, 1118 (9th Cir. 2024) (simplified)
(quoting Kisor, 588 U.S. at 574–79). Second, the agency’s interpretation—here,
the Guidelines commentary—must be “reasonable.” Id. Finally, “the character
and context of the agency interpretation” must “entitle[] it to controlling weight.”
Id. Each requirement is met here.
The first Kisor requirement is satisfied because the “for the purpose of”
clause in the premises enhancement is “genuinely ambiguous.” Kisor, 588 U.S. at
574. The phrase “for the purpose of” is ambiguous because it has a spectrum of
3 possible meanings. Indeed, we note that when examining identical text in 21
U.S.C. § 856(a)(1)—the criminal statute that § 2D1.1(b)(12) was modeled
after—we reasoned that the phrase is susceptible to “various formulations,”
“between the poles of ‘incidental use’ and ‘sole purpose.’” See United States v.
Shetler, 665 F.3d 1150, 1161 (9th Cir. 2011).
The second Kisor requirement is satisfied because the commentary is a
reasonable interpretation of the Guidelines. An agency’s interpretation is
reasonable if it “come[s] within the zone of ambiguity the court has identified after
employing all its interpretive tools.” Kisor, 588 U.S. at 575–76. Here, the
commentary’s interpretation—“one of the defendant’s primary or principal uses,”
U.S.S.G. § 2D1.1, cmt. n.17—is reasonable because it falls within the “zone of
ambiguity” between “incidental use” and “sole purpose.”
The final Kisor requirement is also satisfied. This requirement “does not
reduce to any exhaustive test,” but the Supreme Court has provided three
“especially important markers” for determining when it is satisfied, Kisor, 588
U.S. at 576–77: “(i) the interpretation is the agency’s official position, rather than
any more ad hoc statement not reflecting the agency’s views; (ii) the interpretation
implicates the agency’s substantive expertise; and (iii) the interpretation reflects
4 the agency’s fair and considered judgment.” Trumbull, 114 F.4th at 1118
(simplified) (citing Kisor, 588 U.S. at 574–79).
The commentary here satisfies all of those criteria. First, the commentary is
the Commission’s official position, issued by the Commission itself. Id. at 1120.
Second, when the commentary interprets ambiguous terms in the Guidelines, as it
does here, it is within the Commission’s scope of authority: to “establish
sentencing policies and practices for the [f]ederal criminal justice system.” Id.
(alteration in original) (quoting 28 U.S.C. § 991(b)(1)). Finally, the commentary
represents the Commission’s “fair and considered judgment” rather than just a
convenient litigating position, because it was issued in advance of litigation and
after a considered process. See id. at 1120–21.
B
Thaxton argues in the alternative that it was error to find that drug
distribution was a primary or principal use of Thaxton’s home. Because this is a
factual determination, we review for clear error. United States v. Harris, 999 F.3d
1233, 1235 (9th Cir. 2021).
Here, it was not clear error to find that drug distribution was one of
Thaxton’s primary or principal uses of his apartment. There was evidence that
5 Thaxton initially moved to his apartment for the purpose of distributing drugs: He
admitted that he moved there to be closer to his drug contacts.
There was evidence that Thaxton used his apartment to distribute drugs. He
“cut” drugs there, and there was a confirmed sale of drugs in the apartment. The
frequency of this unlawful use was likely high: He received drugs weekly, and
“provided his source of supply with between $50,000 and $250,000 in drug
proceeds on a weekly or bi-weekly basis.” And the items found in the
apartment—large quantities of drugs and money, as well as firearms and
ammunition—further support the finding that drug distribution was a primary or
principal use.
United States v. Job, 871 F.3d 852 (9th Cir. 2017) is not to the contrary. In
Job, the district court made no findings of fact before applying the enhancement,
and “it [did] not appear that the court considered whether or not one of the primary
purposes of Job’s kitchen was to manufacture methamphetamine.” Id. at 872.
Here, the district court made findings and carefully considered the purpose of the
residence.
II
Finally, Thaxton argues that the district court violated Federal Rule of
Criminal Procedure 32(i)(3)(B) by failing to rule on three issues. Thaxton did not
6 raise this objection before the district court, so we review for plain error. United
States v. Wijegoonaratna, 922 F.3d 983, 989 (9th Cir. 2019).
Rule 32 requires a sentencing court to “--for any disputed portion of the
presentence report or other controverted matter--rule on the dispute or determine
that a ruling is unnecessary either because the matter will not affect sentencing, or
because the court will not consider the matter in sentencing.” Fed. R. Crim. P.
32(i)(3)(B). “Only specific factual objections trigger Rule 32(i)(3)(B).” United
States v. Petri, 731 F.3d 833, 841 (9th Cir. 2013) (quoting United States v.
Stoterau, 524 F.3d 988, 1011 (9th Cir. 2008)). Thaxton argues that the district
court should have ruled on both the safety-valve reduction under U.S.S.G.
§ 2D1.1(b)(18), and the zero-point offender reduction under U.S.S.G. § 4C1.1,
specifically because he did not possess a firearm “in connection with” the offense.
U.S.S.G. §§ 2D1.1(b)(18), 4C1.1(a)(7), 5C1.2(a)(2). However, these issues did not
involve any underlying controverted matters. In the district court, Thaxton only
disputed whether he possessed a firearm at all, and the district court ruled on that
dispute, thus satisfying its Rule 32(i)(3)(B) obligations. Thaxton had no separate
factual objection about not possessing a firearm “in connection with” the offense.
Because there was no unresolved specific factual dispute, there was no Rule
32(i)(3)(B) violation, see Petri, 731 F.3d at 841, and certainly no plain error.
7 Thaxton also disagrees with certain facts in the presentence report about a
prior conviction and arrest. Although Thaxton did raise a specific factual objection
about this issue, the objection would not change his criminal history category or
any of the enhancements applied to his Offense Level. Therefore, any error in not
specifically addressing the objection was harmless.
IV
We affirm the district court’s imposition of the sentence. Given our
resolution of this case, we need not—and do not—reach any other issue raised by
the parties.
AFFIRMED.