After latest acquitted conduct dodge, will SCOTUS keep dodging the deep circuit split over guideline commentary?

July 11, 2023

In my recent “inartful dodgers” series (linked below), I bemoaned the Supreme Court’s curious suggestion that the Sentencing Commission should first address acquitted-conduct sentencing policy issues before it took up broader acquitted-conduct constitutional issues. That series got me to wondering whether we now ought also now expect the Supreme Court to keep dodging another important federal sentencing issue which has produced a deep circuit split, namely the weight to be given to guideline commentary. This effective press piece about a recent Tenth Circuit ruling in this area provide the background:

When Congress created the U.S. Sentencing Commission in 1984, it intended to reduce disparities in criminal sentencing at the federal level by developing a set of guidelines, which trial judges now reference during sentencing. However, the guidelines are also accompanied by commentary — notes that clarify and expand upon the meaning of the guidelines. In recent years, federal appeals courts have reached different conclusions about when judges should apply the commentary and when they should ignore it.

Last month, the federal appeals court based in Denver weighed in, deciding it is appropriate to apply the sentencing commentary unless it runs contrary to federal law or the guidelines themselves. “Neither the guideline provisions nor the commentary has any binding legal authority to begin with,” clarified Judge Gregory A. Phillips in the June 23 opinion from the U.S. Court of Appeals for the 10th Circuit. Regardless, he added, there is “nothing tyrannical about judicial deference to the commentary.”

The effect of the decision is to give greater weight to the Sentencing Commission’s annotations to its guidelines, which, in the case of Quindell Tyree Maloid, added at least 14 months to his criminal sentence….

For decades, the Supreme Court held that the commentary was “authoritative” unless contradicted by federal law or the guidelines themselves. Then, in 2019, the court issued Kisor v. Wilkie, finding a government agency’s interpretation of its own rules does not deserve a court’s deference unless the rule is “genuinely ambiguous.” Although Kisor involved the U.S. Department of Veterans Affairs, federal courts soon began to reconsider how to treat the Sentencing Commission’s interpretation of its guidelines through the commentary.

For some appeals courts, the answer was that Kisor applied to the commentary. “Now the winds have changed,” wrote Judge Stephanos Bibas of the Philadelphia-based Third Circuit. “In Kisor, the Supreme Court awoke us from our slumber of reflexive deference: Agency interpretations might merit deference, but only when the text of a regulation is truly ambiguous.”

The federal government has also accepted that Kisor requires judges to examine sentencing commentary more critically. In November 2022, the solicitor general’s office acknowledged in a filing to the Supreme Court that Kisor provides the “authoritative standards for determining whether particular commentary is entitled to deference.”

However, the 10th Circuit was not convinced…. Phillips, in the panel’s opinion, noted that the Kisor decision pertained to executive branch agencies, not the Sentencing Commission. “That’s a critical distinction,” he wrote. The Sentencing Commission is not a policymaking body, but an entity providing guidance to judges, Phillips elaborated. Judges retain discretion to deviate from the sentencing guidelines, and Congress can exercise its power to reject any amendments the Sentencing Commission proposes….

Attorney Adam Mueller said the Supreme Court will potentially have to resolve the split between those appeals courts that still permit judges to lean on the sentencing commentary and those that have now adopted the Kisor decision’s more skeptical approach…. Earlier this year, the Supreme Court turned down an appeal that sought to clarify how lower courts should now treat the sentencing commentary.

The Tenth Circuit’s ruling in US v. Maloid is available at this link, and footnote 12 of the panel opinion details the deep circuit split on this important issue of guideline interpretation and application:

By our count, four circuits have held that Kisor abrogated Stinson. E.g., United States v. Nasir, 17 F.4th 459, 470-71 (3d Cir. 2021) (en banc); United States v. Riccardi, 989 F.3d 476, 484-85 (6th Cir. 2019); United States v. Castillo, 69 F.4th 648, 657-68 (9th Cir. 2023); United States v. Dupree, 57 F.4th 1269, 1275 (11th Cir. 2023) (en banc). The Fifth Circuit has granted an en banc rehearing to resolve the issue. United States v. Vargas, 35 F.4th 936 (5th Cir.), reh’g en banc granted, 45 F.4th 1083 (5th Cir. 2022). The Fourth Circuit has developed an intra-circuit split in dueling decisions within two weeks of each other. Compare United States v. Campbell, 22 F.4th 438, 444-45(4th Cir. 2022), with United States v. Moses, 23 F.4th 347, 357 (4th Cir. 2022). The First Circuit refused to overrule prior precedent relying on Stinson under the law-of-the-circuit doctrine. United States v. Lewis, 963 F.3d 16, 24-25 (1st Cir. 2020). Other circuits have continued to apply Stinson without much discussion of Kisor. E.g., United States v. Richardson, 958 F.3d 151, 154 (2d Cir. 2020); United States v. Smith, 989 F.3d 575, 583-85 (7th Cir.), cert. denied, 142 S. Ct. 488 (Nov. 15, 2021); United States v. Merritt, 934 F.3d 809, 811 (8th Cir. 2019); United States v. Jenkins, 50 F.4th 1185, 1197 (D.C. Cir. 2022).

Though the Supreme Court is already slated to address agency deference issues in a case during its next Term, the Sentencing Commission is a unique agency as noted by Judge Phillips. Consequently, whether and how deference should be shown to the Sentencing Commission’s guideline commentary is not an issue that can be readily resolved in other cases without direct SCOTUS consideration of this precise issue.

However, the Sentencing Commission arguably could just move all of its guideline commentary directly into the guidelines. Doing so would largely moot the deep circuit split over how much weight should be given to guideline commentary (because there would, technically, no longer be any guideline commentary). And, notably, in its latest statement of proposed priorities, the Commission has stated this it is “continu[ing] its multiyear study of the Guidelines Manual to address case law concerning the validity and enforceability of guideline commentary.”

So, if the Supreme Court’s instinct is just to inartfully dodge hard sentencing issues based on the hope the Sentencing Commission will take care of matters, we probably should not expect a cert grant on Kisor‘s role in guideline application anytime soon.

Inartful dodgers series:

A few prior posts on Kisor guideline issues: