by David Kim

The United States Court of Appeals for the Third Circuit held that the phrase “commencement of the instant offense” for calculating the 10-­year criminal history look-­back period under U.S. Sentencing Guidelines (“U.S.S.G.”) § 4A1.2(e)(2) unambiguously refers to the start of the specific offense of conviction, not separate, uncharged “relevant conduct.” Because the Guideline’s text is unambiguous, the Court determined that, under the three-­step framework set forth in United States v. Nasir, 17 F.4th 459 (3d Cir. 2021), the U.S. District Court for the Middle District of Pennsylvania erred by deferring to the contrary official commentary that instructed courts to include such conduct in the calculation.

Background

In 2013, Xavier Josey pleaded guilty to three counts of indecent liberties with a child in North Carolina. As a result, he was required under the Sex Offender Registration and Notification Act (“SORNA”), 34 U.S.C. § 20913(b), to register federally as a sex offender and to update his registration within three days of any change of residence.

Josey initially complied with SORNA’s update requirements. He updated his federal information when he moved from North Carolina to Far Rockaway, New York, in 2017; again when he moved within New York from Far Rockaway to Queens later that year; and a third time when he moved within Queens in 2018.

However, New York state law imposed a separate requirement: that he verify his address on an annual basis. Josey submitted this state-­level verification in 2018 but then failed to do so in 2019 or any subsequent year. By January 2023, the Government first identified Josey as residing in Pennsylvania. After this move to Pennsylvania, Josey also failed to update his address on the federal registry as required by SORNA. Consequently, he was indicted and pleaded guilty to knowingly failing to update his federal registration after traveling in interstate commerce, in violation of 18 U.S.C. § 2250(a).

In anticipation of sentencing, the Probation Office prepared a Presentence Investigation Report (“PSR”) that calculated an advisory Guidelines range of 24 to 30 months’ imprisonment. This was based on an offense level of 10 and a criminal history score of 13, which placed Josey in Criminal History Category VI. This score included prior convictions dating back to 2010.

Josey objected to the PSR. He argued that under U.S.S.G. § 4A1.2(e)(2), only sentences imposed “within ten years of the defendant’s commencement of the instant offense” should be counted. He pointed out that three of his convictions (two from 2010 and one from 2011) resulted in sentences imposed more than 10 years before his 2023 federal SORNA violation. Without these sentences, which added four points, his score would be 9, placing him in Category IV and reducing his Guidelines range to 15 to 21 months.

The Probation Office disagreed, reasoning that the term “instant offense” in § 4A1.2(e)(2) includes “relevant conduct,” which is defined in U.S.S.G. § 1B1.3(a)(2) as “all acts and omissions … that were part of the same course of conduct.” The PSR maintained that Josey’s “instant offense” therefore commenced in 2019 when he first failed to submit his New York state address verification. Using 2019 as the start date, his 2010 and 2011 sentences fell within the 10-­year look-­back period.

At his sentencing hearing, the District Court overruled Josey’s objection. It agreed with the Probation Office that Josey’s 2019 state-­law verification failure qualified as “relevant conduct” because it was part of “the same course of conduct” as his 2023 federal SORNA violation.

In its reasoning, the District Court did not reference the commentary to § 4A1.2 (the look-­back rule), which instructs courts to include relevant conduct. When interpreting the Relevant Conduct Guideline (§ 1B1.3), the District Court explicitly distinguished between the Guideline’s text and its commentary. It stated it would “disregard the [Relevant Conduct Guideline’s] commentary” and rely only on the plain text of § 1B1.3 and the “persuasive analysis” of United States v. Caldwell, 746 F. App’x 518 (6th Cir. 2018), to conclude Josey’s state and federal violations were part of the “same course of conduct.”

Applying this reasoning, the District Court adopted the PSR’s calculation, concluded Josey fell within Criminal History Category VI, and imposed a sentence of 24 months’ imprisonment – the bottom of the 24-­to-­30-­month range. Josey timely appealed.

Analysis

The Court observed that on appeal, Josey challenged his sentence on two grounds, arguing the District Court erred in calculating his criminal history score. He first challenged the District Court’s decision to consider “relevant conduct” when determining the “commencement of the instant offense” under § 4A1.2(e)(2). Second, he contested the District Court’s factual conclusion that his prior state-­law registration violation was part of the “same course of conduct” as his federal SORNA violation under § 1B1.3.

The Court determined that it was unnecessary to reach the second issue, concluding that “relevant conduct” is “simply not relevant in determining the look-­back period in § 4A1.2.” The Court ruled that the phrase “commencement of the instant offense” unambiguously means the start of the conduct constituting the offense of conviction, not uncharged relevant conduct. It determined that whether the District Court implicitly deferred to the commentary of § 4A1.2 or merely assumed, as the court in Caldwell appeared to do, that relevant conduct was properly considered, it erred. The District Court’s critical error was its conclusion that Josey “commenc[ed] … the instant offense” when he violated New York’s state registration law in 2019, which improperly pulled his 2010 and 2011 convictions into the 10-­year look-­back period, the Court stated.

The Court began its analysis by reviewing the framework for deferring to the Sentencing Commission’s commentary. It noted that for many years, following Stinson v. United States, 508 U.S. 36 (1993), courts had treated commentary as authoritative unless it was “inconsistent with, or a plainly erroneous reading of” the Guidelines. See United States v. Metro, 882 F.3d 431 (3d Cir. 2018). The Court explained that this standard changed after the Supreme Court’s decision in Kisor v. Wilkie, 588 U.S. 558 (2019), which held that courts should only defer to an agency’s interpretation of its own regulations if the regulation is “genuinely ambiguous.”

The Third Circuit extended this holding to the Sentencing Guidelines in United States v. Nasir, 17 F.4th 459 (3d Cir. 2021), ruling that deference to Guidelines commentary should no longer be presumed. Under Nasir, a three-­step test applies. First, the court must ask whether the Guideline is “genuinely ambiguous” after “carefully consider[ing] the text, structure, history, and purpose.” Id. (quoting Kisor). If the Guideline is not ambiguous, the inquiry ends, and the plain text must be applied. Second, if the Guideline is determined to be ambiguous, the court asks if the commentary is “reasonable,” meaning it clarifies the ambiguity without changing the text’s meaning. See United States v. Chandler, 104 F.4th 445 (3d Cir. 2024). Finally, if the commentary is reasonable, the court must consider whether its “character and context … entitles it to controlling weight,” such as when it “implicate[s] [the Commission’s] substantive expertise” and reflects “fair and considered judgment.” Nasir.

The Court determined that the District Court had misapplied this framework. While the District Court recognized Nasir, it only performed the ambiguity analysis on § 1B1.3’s “same course of conduct” language. This was an error because the District Court “should have first performed the Nasir analysis on the Guidelines language ‘commencement of the instant offense’ under § 4A1.2,” the Court explained. Instead, the District Court “implicitly deferred” to § 4A1.2’s commentary (U.S.S.G. § 4A1.2 cmt. n.8), the very provision that instructs courts to include “any relevant conduct.” Thus, the threshold question, which the Court stated was “the first step – and for our purposes today, the last,” was whether the text of § 4A1.2(e)(2) itself is ambiguous.

Employing the “traditional tools of construction,” the Court concluded that the phrase “commencement of the instant offense” is “susceptible to only one reasonable meaning: it refers to the start of the specific offense for which a defendant is being sentenced, meaning it does not include relevant conduct or other offenses.” Looking first to the plain text, see United States v. Caraballo, 88 F.4th 239 (3d Cir. 2023), the Court consulted contemporaneous dictionaries. It noted “commence” was defined as “[t]o initiate by performing the first act,” Black’s Law Dictionary (5th ed. 1979,) which “focuses on the ‘first act’” and “does not … encompass similar or related activities.”

The Court rejected the Government’s argument that “offense” was ambiguous, reasoning that the modifier “instant” provided the necessary “temporal overlay.” Citing Webster’s New Collegiate Dictionary (1980), “instant” was defined as “immediate,” “present,” or “current.” The Court found it notable that Webster’s provided the illustrative example: “previous felonies not related to the instant crime.” Thus, the Court held, “the term ‘instant offense’ means the immediate or present offense under consideration,” making it “synonymous with the term ‘offense of conviction.’”

The Court stated this textual conclusion was reinforced by the structure and history of the Guidelines. It recounted the Commission’s compromise between a “charge offense” system (sentencing based only on proven elements) and a “real offense” system (sentencing based on additional, uncharged conduct). See Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, 17 Hofstra L. Rev. 1, 8–9 (1988). The Commission settled on a “hybrid system,” a structure reflected in Chapter Four. The Court explained that Sections 4A1.1 and 4A1.2 set forth a “mechanical formula” for calculating the criminal history score, which “does not invite courts to consider a defendant’s specific conduct.” In contrast, “real offense” considerations are “consolidate[d]” within § 4A1.3, which only permits their use in deciding whether to apply a departure.

This structure “demonstrates that [real offense considerations] do not have a role to play in calculating an initial criminal history score under § 4A1.2,” the Court reasoned. Finally, the Court stated that the Relevant Conduct Guideline itself, § 1B1.3, “dispels” any doubt. Section 1B1.3(a) explicitly directs courts to consider relevant conduct for Chapters Two and Three, but § 1B1.3(b) takes a “different approach” for Chapters Four and Five, stating their factors “shall be determined on the basis of the conduct and information specified in the respective guidelines.” Because nothing in the text of § 4A1.2 permits considering offenses other than “the instant offense,” the Court concluded that relevant conduct is excluded.

Given this unambiguous meaning, the Court then applied the plain text to Josey’s case. It stated the District Court erred by deferring to the commentary and using Josey’s 2019 New York state-­law violation as the starting point. The Court explained that the proper inquiry was to “look to the elements of the charged SORNA violation under 18 U.S.C. § 2250(a) and identif[y] the first culpable act comprising that offense.”

The Court analyzed the statute’s three elements. First, being “required to register,” § 2250(a)(1), describes a status, not an act, and therefore cannot mark the “commencement.” City of Grants Pass v. Johnson, 603 U.S. 520 (2024); Rehaif v. United States, 588 U.S. 225 (2019). Second, “travel[ing] in interstate or foreign commerce,” § 2250(a)(2)(B), is a jurisdictional element and a “predicate for the culpable omission,” not the culpable act itself, as an offender only violates the statute if he “travels and then fails to register.” See Carr v. United States, 560 U.S. 438 (2010). It was therefore the third element, the “knowing[] fail[ure] to register or update,” § 2250(a)(3), that “constitutes the first culpable act comprising the offense,” according to the Court.

Conclusion

Turning to the present case, this requirement was triggered by Josey’s move to Pennsylvania, meaning the “violative conduct that ‘commence[d] … the instant offense’” occurred in January 2023, the Court determined. Consequently, the 10-­year look-­back period of § 4A1.2(e)(2) extended only as far back as January 2013. Thus, the Court ruled that Josey’s prior sentences from 2010 and 2011 “fall outside the relevant look-­back period and should have been excluded.”

Accordingly, the Court vacated Josey’s sentence and remanded for resentencing consistent with its opinion. See: United States v. Josey, 2025 U.S. App. LEXIS 24290 (2025).   

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