The Sentencing Guidelines are not statutes. Congress didn’t write them; the United States Sentencing Commission did. And for a long time, courts treated the Commission’s own explanations of what the Guidelines mean — collected in what’s called “commentary” — as effectively binding. If the Commission said a word meant X, courts said X.
That world is mostly gone now. A 2019 Supreme Court decision called Kisor v. Wilkie changed the interpretive ground rules, and the Third Circuit applied those new rules to the Sentencing Guidelines in its 2021 en banc decision in United States v. Nasir. The upshot: commentary only controls if the underlying Guideline is genuinely ambiguous — and courts must figure that out through conventional tools of legal interpretation before they can even look at what the Commission has to say.
A new Third Circuit decision, United States v. Miller, No. 24-2199 (3d Cir. Apr. 3, 2026), walks through that analysis in full for a provision defense lawyers see regularly: the four-level leadership enhancement under U.S.S.G. § 3B1.1(a).
The Enhancement and the Question It Raises
Section 3B1.1(a) of the Sentencing Guidelines calls for a four-level increase in a defendant’s offense level — a significant bump in any case — when he was “an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” The phrase “otherwise extensive” has generated litigation for decades. What makes criminal activity “otherwise extensive”? Does that mean something separate from the five-participant threshold, or is it just another way of measuring the same thing?
Christopher Miller ran a COVID-era fraud scheme that brought in over $2 million. He filed dozens of bogus loan applications through the Paycheck Protection Program and related programs, using the personal information of family members and associates who received kickbacks in return. The District Court applied the § 3B1.1(a) enhancement, counting Miller’s wife and neighbor as “participants” — a label that carries legal significance — and finding that the total headcount satisfied the “otherwise extensive” prong. Miller appealed.
A Framework Built on Deference — That Had to Be Rebuilt
Before Kisor and Nasir, the Third Circuit had already tackled the “otherwise extensive” question in United States v. Helbling, 209 F.3d 226 (3d Cir. 2000). In Helbling, the court simply deferred to the Sentencing Commission’s commentary, which defined “participant” and directed courts to count both participants and non-participants when assessing extensiveness. The court adopted a three-step test — borrowed from the Second Circuit — for adding up the headcount and deciding when the total is the “functional equivalent” of five participants.
The problem is that Helbling never asked whether the Guideline was ambiguous in the first place. Under the old regime, that didn’t matter. Under Kisor and Nasir, it does.
Miller required the Third Circuit to go back and do that work. The result is a methodical, step-by-step walk through the Nasir framework applied to § 3B1.1(a)’s “otherwise extensive” language — something the court hadn’t done before.
Genuinely Ambiguous
Step one of the Nasir framework asks whether the Guideline is “genuinely ambiguous” after considering its text, structure, history, and purpose. The court concluded it is.
Dictionary definitions of “otherwise” and “extensive” don’t resolve the question. The phrase “otherwise extensive” modifies “criminal activity,” the same thing the five-participant threshold modifies — but what counts as extensive is anyone’s guess from the text alone. Does it mean something about the number of people involved? The geographic reach? The complexity of the planning? The amount of money at stake? Circuits have disagreed on exactly this point, with some courts looking only at headcount and others allowing sentencing judges to consider a broader range of factors.
The court also pointed to the word “participant” itself, which the commentary narrows considerably from its everyday meaning. In common usage, anyone who takes part in something is a participant. The Commission’s commentary limits the term to people who are criminally responsible — who could themselves be charged. That’s a meaningful restriction, and its absence from the text of the Guideline is itself a marker of ambiguity.
Commentary Survives the Analysis
Having found genuine ambiguity, the court moved to steps two and three: Is the commentary reasonable? And does it deserve controlling weight?
Both questions get “yes” answers. The commentary’s focus on headcount — participants and countable non-participants — doesn’t expand the Guideline; if anything, it narrows what other circuits have allowed sentencing courts to consider. The definition of “participant” narrows the everyday meaning of the word rather than inflating it. And the Application Notes carry institutional weight: they’ve been part of the Guidelines since 1987, they represent the Commission’s official position, and the question of how to measure the size of a criminal enterprise falls squarely within what the Sentencing Commission exists to decide.
With the Nasir analysis complete, the Helbling test survives. The three-step inquiry — separating participants from non-participants, asking whether the defendant used each non-participant’s services with criminal intent, and determining whether each non-participant’s role was peculiar and necessary to the scheme — remains the right way to assess “otherwise extensive” in this circuit.
The District Court’s legal error was skipping the Nasir analysis before applying Helbling. But because running the analysis produces the same result, the error was harmless.
The Interpretive World We’re Living In Now
What Miller really illustrates is what post-Nasir Guidelines litigation looks like in practice. The old approach — find applicable commentary, apply it, done — is gone. Every contested Guideline provision now carries a threshold question: is it genuinely ambiguous? That determination requires actual textual analysis, not deference as a starting point.
In Miller, that analysis leads back to the same place Helbling arrived at twenty-five years ago. But the path matters. Courts and litigants can no longer shortcut to the commentary. The commentary has to earn its authority through the Kisorprocess, and some commentary won’t survive that scrutiny.
This is exactly the kind of structural shift that creates opportunities for defense counsel in Guidelines cases. Where commentary expands a Guideline’s reach rather than clarifying it — or where the underlying Guideline text is unambiguous in a way that’s favorable to the defense — the Nasir framework provides the footing to push back. Miller is a useful road map for understanding both how that analysis works and how courts will apply it when the commentary ultimately holds up.