USA v. Diaz, No. 23-10197 (5th Cir. 2023)
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Case: 23-10197 Document: 00516946211 Page: 1 Date Filed: 10/26/2023 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-10197 Summary Calendar ____________ FILED October 26, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Sergio Diaz, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:22-CR-269-1 ______________________________ Before Haynes, Graves, and Higginson, Circuit Judges. Per Curiam: * Sergio Diaz appeals the sentence imposed following his guilty plea conviction for possession of stolen mail. He argues that the district court erred in calculating the loss amount attributable to him under U.S.S.G. § 2B1.1(b)(1) by relying on “commentary instead of the guideline text.” He _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-10197 Document: 00516946211 Page: 2 Date Filed: 10/26/2023 No. 23-10197 contends that application note three is not entitled to deference in light of the Supreme Court’s decision in Kisor v. Wilkie, 139 S. Ct. 2400, 2414-18 (2019). After Diaz filed his brief, we clarified that Kisor did not expressly overrule or modify Stinson v. United States, 508 U.S. 36, 38 (1993). See United States v. Vargas, 74 F.4th 673 (5th Cir. 2023) (en banc). Accordingly, we still defer to Guidelines commentary “unless it is inconsistent with, or a plainly erroneous reading of the guideline definition.” Id. at 680 (internal quotation marks and citation omitted). “Because Kisor did not overrule or modify Stinson, our pre-Kisor cases deferring to various notes in the Sentencing Guidelines based on Stinson are still good law.” United States v. Choulat, 75 F.4th 489, 494 (5th Cir. 2023). Thus, application note three is “authoritative” here. United States v. Dowl, 619 F.3d 494, 502 (5th Cir. 2010). The district court did not err in calculating the loss amount attributable to Diaz under § 2B1.1(b)(1) by relying on the application note to this section. See Dowl, 619 F.3d at 502. The judgment of the district court is AFFIRMED. 2
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