United States v. Coates, No. 22-3122 (10th Cir. 2023)
Annotate this CaseIn 2019, defendant-appellant Larry Coates was caught possessing child pornography. At the time, he was serving supervised release for Kansas-state child exploitation violations. Coates pleaded guilty to a single count of violating 18 U.S.C. § 2252A(a)(5)(B), (b)(2). In anticipation of sentencing, the probation office prepared a presentence investigative report (“PSR”) which recommended a pattern of activity enhancement pursuant to U.S.S.G. § 2G2.2(b)(5). Coates objected to the enhancement, reasoning it could only apply if the Guidelines' commentary’s definition of pattern was used. In doing so, Coates advocated the district court rely on the Supreme Court’s recent decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), which determined courts could only defer to commentary accompanying executive agency regulations when the associated regulation was “genuinely ambiguous.” Absent express guidance from the Tenth Circuit Court of Appeals, the district court declined to apply Kisor and it did not otherwise believe the commentary inconsistent with the guideline. The Tenth Circuit confirmed this approach in United States v. Maloid, 71 F.4th 795 (10th Cir. 2023). Concurring with the district court's judgment, the Tenth Circuit affirmed.
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