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TONY RAMSEK, FRANK HARRIS, THEODORE JOSEPH ROBERTS, and TONY WHEATLY,
Plaintiffs-Appellees,
v.
ANDREW G. BESHEAR, Governor of Kentucky, ERIC FRIEDLANDER, Acting Secretary of the Cabinet for Health and Family Services, and STEVEN STACK, Commissioner for the Kentucky Department of Public Health, in their official capacities only,
Defendants-Appellants.
   No. 20-5749
Appeal from the United States District Court
for the Eastern District of Kentucky at Frankfort.
No. 3:20-cv-00036—Gregory F. Van Tatenhove, District Judge.
Argued: January 12, 2021
Decided and Filed: March 3, 2021
Before: SUHRHEINRICH, McKEAGUE, and READLER, Circuit Judges.


_________________________
OPINION
_________________________

CHAD A. READLER, Circuit Judge. Over the last year, governments at all levels have employed a range of precautionary measures in an attempt to curb the COVID-19 pandemic. In Kentucky, Governor Andrew Beshear’s pandemic response included instituting a “Mass Gathering Order.” By its terms, the Order prevented groups larger than ten in number from assembling for certain purposes.

Challenging that Order in federal court, plaintiffs alleged that the Order, both facially and as applied, violated their First Amendment rights to free speech and assembly. Later developments would reveal that, at least in an as-applied context, plaintiffs had been the victims of a textbook First Amendment violation, given Governor Beshear’s content-based application of the Order. For while Governor Beshear discouraged plaintiffs—through means including the threat of prosecution—from holding a mass gathering at the State Capitol to express their views opposing his COVID-19-related restrictions, he at the same time welcomed a large group of Black Lives Matter protestors to the State Capitol, even going so far as to speak to those protestors despite their plain violation of the Order.

On related grounds, the district court preliminarily enjoined enforcement of the Order. But before that decision could be fully litigated before us, Governor Beshear withdrew the Order. That action renders this appeal moot, as we are without a live controversy to resolve. To the extent plaintiffs claim that a threat of prosecution for their past violations of the Order keeps the broader case alive, we remand the case to the district court to determine what further relief, if any, is proper.



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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JENNIFER RICCARDI,
Defendant-Appellant.
   No. 19-4232
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:18-cr-00740-1—John R. Adams, District Judge.
Argued: December 1, 2020
Decided and Filed: March 3, 2021
Before: DAUGHTREY, NALBANDIAN, and MURPHY, Circuit Judges.


_________________________
OPINION
_________________________

MURPHY, Circuit Judge. Jennifer Riccardi, a postal employee, pleaded guilty to stealing 1,505 gift cards from the mail. Most of these gift cards had an average value of about $35 for a total value of about $47,000. The Sentencing Guidelines directed the district court to increase Riccardi’s guidelines range based on the amount of the “loss.” U.S.S.G. § 2B1.1(b)(1). Yet § 2B1.1 does not define the word “loss.” A search for its ordinary meaning might produce definitions such as “[t]he amount of something lost” or “[t]he harm or suffering caused by losing or being lost.” American Heritage Dictionary of the English Language 1063 (3d ed. 1992). Perhaps, then, the word is ambiguous on the margins. Does it, for example, cover only financial harms or emotional ones too? But one definition of “loss” that you will not find in any dictionary is the rule that the district court used for Riccardi’s stolen gift cards: a $500 minimum loss amount for each gift card no matter its actual value or the victim’s actual harm (which, for Riccardi, amounted to a total loss amount of $752,500).

Riccardi challenges the use of this $500 minimum loss amount, which comes from the Sentencing Commission’s commentary to § 2B1.1. The commentary instructs that the loss “shall be not less than $500” for each “unauthorized access device,” a phrase that Riccardi concedes covers stolen gift cards. U.S.S.G. § 2B1.1 cmt. n.3(F)(i). But guidelines commentary may only interpret, not add to, the guidelines themselves. United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (per curiam). And even if there is some ambiguity in § 2B1.1’s use of the word “loss,” the commentary’s bright-line rule requiring a $500 loss amount for every gift card does not fall “within the zone of ambiguity” that exists. Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019). So this bright-line rule cannot be considered a reasonable interpretation of—as opposed to an improper expansion beyond—§ 2B1.1’s text. We thus reverse Riccardi’s sentence and remand for resentencing without the use of the commentary’s automatic $500 minimum loss amount for every gift card.