In United States v. Lange, No. 16-15164 (July 17, 2017) (William Pryor, Ed Carnes, Moore), the Court held that the Florida offense of being a principal to the attempted manufacture of a controlled substance qualified as a "controlled substance offense" under U.S.S.G. 4B1.2(b).
In so holding, the Court relied heavily on the commentary to the Guidelines. Although the commentary listed aiding and abetting, attempting, and conspiring to prohibit manufacture, the Court found that this list of inchoate crimes was inclusive, not exclusive. Applying general rules of statutory construction, and declining to read the Guidelines narrowly, the Court found that the commentary also encompassed principal liability for aiding and abetting attempted manufacture. Like the enumerated inchoate crimes, this crime also sought to prohibit manufacture. To support its conclusion, the Court also relied on Florida's principal liability law and the federal law of aiding and abetting under 18 U.S.C. 2.
Applying plain error, the Court also rejected the defendant's argument that the government engaged in sentencing factor manipulation by encouraging five separate criminal transactions during a sting operation instead of arresting him after the first transaction. The Court noted that the government must engage in "extraordinary misconduct" in order to engage in sentencing factor manipulation, and the Court had never previously reduced a sentence on that basis. The Court found no error, let alone plain error, because nothing required officers to make an arrest after the first transaction in a sting operation.