U.S. v. Junior Abreu, 2022 WL 1298569, 

No. 20-2786, CA3, May 2, 2022. The Court determined  (1) The Sentencing Guideline’s commentary defines the phrase “crime of violence” to include “conspiracy to commit a crime of violence;” however, (2) the text of the guideline does not define the phrase “crime of violence” to include conspiracy offenses, or any other type of inchoate offense; (3) because there is no ambiguity in the text of the Guideline, and because the commentary is inconsistent with the text, the commentary is not entitled to deference; therefore (4) Defendant’s prior state conviction for “conspiracy to commit second-degree agg assault” does not trigger the “prior crime of violence” enhancement at U.S.S.G. § 2K2.1(a)(4) (and thus, is not a predicate for career offender).  On the issue of preservation, ion; Defense counsel argued below that the Guideline commentary was inconsistent with the guideline text and that the District Court was therefore obligated to “ignore” the commentary. In support of this argument, the defense counsel cited a particular Supreme Court case law line. The defense counsel framed its argument slightly differently and cited different Supreme Court case laws on appeal.  The government argued that because defense counsel had a different argument on appeal, the Appellate Court should apply for a “plain error” review. However, the Court held that the error was preserved and that a de novo review would be applied.