Amicus Curiae Brief — Zimmian Tabb, Petitioner v. United States

No. 20-579

IN THE

Supreme Court of the United States

ZIMMIAN TABB,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF FOR THE

NATIONAL ASSOCIATION OF HOME BUILDERS

AND THE AMERICAN FARM BUREAU FEDERATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

Megan H. Berge

BAKER BOTTS L.L.P.

700 K St., N.W.

Washington, D.C. 20001-5692

(202) 639-7700

Evan A. Young

Counsel of Record

BAKER BOTTS L.L.P.

98 San Jacinto Blvd.

Suite 1500

Austin, Texas 78701

(512) 322-2500

evan.young@bakerbotts.com

Counsel for Amici Curiae

(additional counsel listed on inside front cover)

AMY CHAI

THOMAS J. WARD

NATIONAL ASSOCIATION

OF HOME BUILDERS

1201 15th St. N.W.

Washington, D.C. 20005

(202) 266-8232

ELLEN STEEN

TRAVIS CUSHMAN

AMERICAN FARM BUREAU

FEDERATION

600 Maryland Ave., S.W.

Washington, D.C. 20024

(202) 406-3618

Counsel for Amicus Curiae

National Association of

Home Builders

Counsel for Amicus Curiae

American Farm Bureau

Federation

TABLE OF CONTENTS

Table of Authorities ............................................................. ii

Interest of Amici Curiae ..................................................... 1

Introduction and Summary of Argument .......................... 4

Argument .............................................................................. 5

I.

If Kisor’s Substantial Limitation On Auer

Deference Does Not Apply Here, It Is At

Risk Everywhere................................................... 6

A. Courts—like the Second Circuit—

deferred to Guidelines “commentary”

and other interpretive rules because

they understood this Court’s preKisor precedent to require such

deference ....................................................... 7

B. Kisor

changed

everything—and

eliminated any basis for deferring to

§4B1.2’s commentary ................................. 11

C. Leaving the circuit split in place

would discourage rigorous application

of Kisor, thus transcending the

sentencing context...................................... 14

II. Other Pending Petitions Illustrate The

Issue’s Importance .............................................. 16

Conclusion ........................................................................... 18

(i)

TABLE OF AUTHORITIES

Page(s)

CASES

Auer v. Robbins,

519 U.S. 452 (1997) ............................................... passim

Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410 (1945) ............................................ 2, 8, 9, 15

Christensen v. Harris County,

529 U.S. 576 (2000) ....................................................... 13

Decker v. Northwest Environmental

Defense Center,

568 U.S. 597 (2013) ....................................................9, 11

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ........................................... passim

Marsh v. J. Alexander’s LLC,

905 F.3d 610 (9th Cir. 2018) (en banc) ....................... 15

Pereira v. Sessions,

138 S. Ct. 2105 (2018) .............................................. 14-15

Perez v. Mortgage Bankers Association,

575 U.S. 92 (2015) ........................................................ 15

Secretary of Labor v. Beverly HealthcareHillview,

541 F.3d 193 (3d Cir. 2008) .......................................... 10

Stinson v. United States,

508 U.S. 36 (1993) ................................... 8, 11, 14, 15, 17

Talk America, Inc. v.

Michigan Bell Telephone Co.,

564 U.S. 50 (2011) ........................................................ 10

United States v. Broadway,

815 F. App’x 95 (8th Cir. 2020) .................................... 17

(ii)

iii

United States v. Havis,

927 F.3d 382 (6th Cir. 2019)

(en banc) (per curiam) ................................................ 11

United States v. Hightower,

25 F.3d 182 (3d Cir. 1994) ....................... 8, 11, 12, 14, 17

United States v. Jackson,

60 F.3d 128 (2d Cir. 1995) ....................... 8, 11, 12, 14, 17

United States v. Jefferson,

975 F.3d 700 (8th Cir. 2020) ......................................... 17

United States v. Lovato,

950 F.3d 1337 (10th Cir. 2020) .................................... 17

United States v. Martinez,

602 F.3d 1166 (10th Cir. 2010) ................................15, 17

United States v. Mendoza-Figueroa,

65 F.3d 691 (8h Cir. 1995) (en banc) ........................... 17

United States v. Nasir,

__ F.3d __, 2020 WL 7041357, No. 18-2888

(3d Cir. Dec. 1, 2020) (en banc) .................. 2, 7, 8, 12, 16

United States v. Winstead,

890 F.3d 1082 (D.C. Cir. 2018) .................................... 11

Western Massachusetts Electric Co. v. FERC,

165 F.3d 922 (D.C. Cir. 1999) ...................................... 10

REGULATORY AUTHORITIES

U.S. Sentencing Commission, Guidline §4B1.2 ....... passim

83 Fed. Reg. 65,400 (Dec. 20, 2018) .................................. 13

SECONDARY AUTHORITY

Brett M. Kavanaugh, Fixing Statutory

Interpretation, 129 Harv. L. Rev. 2118

(2016) ........................................................................... 9-10

iv

PETITIONS FOR A WRIT OF CERTIORARI

Broadway v. United States, No. 20-__ ............................. 17

Lovato v. United States, No. 20-6436 ...................... 2, 16, 17

Tabb v. United States, No. 20-579 .............................5, 7, 17

IN THE

Supreme Court of the United States

ZIMMIAN TABB,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF FOR THE

NATIONAL ASSOCIATION OF HOME BUILDERS

AND THE AMERICAN FARM BUREAU FEDERATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE

Amici curiae—the National Association of Home

Builders and the American Farm Bureau Federation—

are business associations representing members of industries that federal agencies heavily regulate.1 Their

members have long been subject to the unpredictable

winds of Auer deference—the doctrine that, until recently, required courts to defer to administrative agencies’

1

Pursuant to this Court’s Rule 37.6, amici affirm that no counsel for

a party authored this brief in whole or in part, that no such counsel

or party made a monetary contribution intended to fund the preparation or submission of this brief, and that no person other than amici and their counsel made such a monetary contribution. Counsel of

record for both parties received timely notice of amici’s intent to file

this brief, and both have consented to its filing.

(1)

2

interpretations of their own regulations.2 Last year, in

Kisor v. Wilkie, 139 S. Ct. 2400 (2019), a bare majority of

this Court retained Auer deference. But all nine Justices

agreed that—at minimum—Auer deference had been allowed to grow largely unchecked and that its spread

must be pared back substantially.

Amici were part of jointly filed briefs in Kisor itself.

They and their co-amici first urged the Court to grant

certiorari and then, on the merits, urged Auer’s abandonment in favor of judicial construction of regulatory

texts. In both briefs, amici described the real-world impact that Auer had on the livelihoods of amici’s members.

Because the ruling in Kisor addressed many of amici’s substantive concerns about Auer deference, despite

not formally overruling Auer, amici are now focused on

ensuring that lower courts honor Kisor’s directive. In

April 2020, they filed joint amicus briefs in two lowercourt cases involving the same issue presented here—

lower courts’ reflexive deference to the same “commentary” to the same unambiguous Sentencing Guideline.3

As discussed below, the divided results in these and other

cases only emphasize that—just a year and a half after

Kisor—it is evident that the lower courts require further

clarification to avoid Kisor’s sway turning on the accidents of geography.

2

The doctrine is so called because of the principles articulated in

Auer v. Robbins, 519 U.S. 452 (1997). Sometimes courts call it “Seminole Rock deference,” because Auer traced its eponymous rule to

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). See infra

Argument Part I.A.

3

They supported a petition for rehearing en banc in United States v.

Lovato, 950 F.3d 1337 (10th Cir. 2020), cert. pending (No. 20-6436),

and filed an amicus brief on the merits in United States v. Nasir, __

F.3d __, 2020, WL 7041357, No. 18-2888 (3d Cir. Dec. 1, 2020). Both

cases are discussed infra.

3

Both amici have a substantial interest that Kisor be

honored in reality, not just in the breach, and that it is

followed by all federal courts across the nation, and in

every regulatory context. Specifically:

The National Association of Home Builders

(NAHB) is a Washington, D.C.-based trade association

whose mission is to enhance the climate for housing and

the building industry. Chief among NAHB’s goals are

providing and expanding opportunities for all people to

have safe, decent, and affordable housing. Founded in

1942, NAHB is a federation of more than 700 state and

local associations. About one-third of NAHB’s approximately 140,000 members are home builders or remodelers; its builder members construct about 80% of all new

homes built in the United States. The remaining members are associates working in closely related fields within the housing industry, such as mortgage finance and

building products and services. NAHB frequently participates as a party litigant and amicus curiae to safeguard

the constitutional and statutory rights and economic interests of its members and those similarly situated.

The American Farm Bureau Federation (AFBF),

headquartered in Washington, D.C., was formed in 1919

and is the largest nonprofit general farm organization in

the United States. Representing about six million member families in all fifty states and Puerto Rico, AFBF’s

members grow and raise every type of agricultural crop

and commodity produced in the United States. Its mission is to protect, promote, and represent the business,

economic, social, and educational interests of American

farmers and ranchers. To that end, AFBF regularly participates in litigation, including as amicus curiae, to represent its members.

4

INTRODUCTION AND

SUMMARY OF ARGUMENT

Why in the world would the nation’s premier trade

associations representing America’s home builders and

farmers file an amicus brief in this case—a criminal appeal challenging the sentence imposed on a defendant

who repeatedly has been convicted of serious drug

crimes? Petitioner, of course, is neither a home builder

nor a farmer, and his sentence has nothing to do with the

regulatory burdens faced by home builders or farmers.

Or so it would seem. Amici appear in this case because a court that can deploy Auer deference to extend

petitioner’s incarceration by nine years can use the same

technique to destroy the settled expectations of American builders and farmers. Amici similarly participated in

Kisor v. Wilkie, which involved veterans’ benefits. Many

home builders and farmers are veterans, and even more

of them hold veterans’ rights dear, but what motivated

amici’s filings in Kisor was the same overarching principle that they invoke today. If courts will defer to any

federal agency’s “interpretation” of unambiguous regulations, then every agency will claim the same solicitude—

and every American is at the same risk as petitioner

here, even if the consequences vary from jail, to denied

benefits, to capriciously enforced regulations.

Amici, in short, request this Court’s review of this

case because they recognize that their members’ success

depends on rigorous adherence to administrative-law

principles in every context in which those principles

arise. Both amici here dedicate their resources to facilitating the work and livelihoods of their respective members—both individuals and companies—and enhancing

those members’ abilities to serve the public throughout

the United States. Regulatory certainty and reliability

are indispensable for any business aiming to make stable

5

plans, appropriately invest in employees and infrastructure, and avoid costly surprises. When courts yield to

interpretive rules, they threaten these rule-of-law values

because interpretive rules can instantly change the

meaning of even long-settled regulations without the

careful process that, for example, notice-and-comment

rulemaking entails. Interpretive rules often catch the

public—including amici’s members—off guard.

This Court’s decision in Kisor did not eliminate all

deference to interpretive rules, but it expressly forbade

the reflexive deference that had become routine. The

judgment below—and a series of other cases involving

the same question this case raises—indicate that lower

courts are already having difficulty applying Kisor at

even its most basic level. While the Third Circuit has saluted Kisor and no longer defers to Sentencing Guidelines “commentary”—i.e., the Commission’s “application

notes,” which are its own interpretation of the actual

Guidelines—when the Guidelines themselves are unambiguous, other courts thus far have refused to yield to Kisor in this context. As the petition notes, the split is already wide and is deepening. Pet. 14-17.

The mere fact that America’s home builders and

farmers are supporting this petition illustrates the transcendence of the issues it presents. Arresting the disuniform responses to Kisor now will prevent far worse responses from taking root and will vindicate this Court’s

role in determining the proper level of deference to administrative interpretations of their own regulations.

The Court should grant the petition.

ARGUMENT

Amici seek to make two main points to explain why

they take the nearly unprecedented step of participating

in a criminal appeal unrelated to their core industries.

First, Kisor was this Court’s response to a chorus of

6

voices—including amici’s—that sounded an alarm about

the massive and harmful expansion of Auer deference.

The public properly regards it as a momentous decision.

Indeed, Auer deference should probably be called “Kisor

deference” going forward.

Second, if Kisor’s promise is to be regarded as meaningful rather than illusory, the Court should nip in the

bud the emerging division over Kisor’s scope. The questions here implicate an express, pre-existing, and deepening circuit split over whether to follow Sentencing Guideline §4B1.2(b)’s definition of “controlled substance offense” (which does not include inchoate offenses) or to

follow the commentary to the Guideline (which does include inchoate offenses). One en banc court recently reversed course specifically because Kisor directed courts

to defer only after finding ambiguity. Others facing the

same question have refused to budge.

If this simple question is left to the vagaries of geography, more challenging Kisor-related questions will be

subject to even more dramatically distinct treatment circuit to circuit, panel to panel, and judge to judge. It is

this consequence of allowing petitioner’s sentence enhancement to stand that is of great concern to amici.

I. IF KISOR’S SUBSTANTIAL LIMITATION ON AUER

DEFERENCE DOES NOT APPLY HERE, IT IS AT RISK

EVERYWHERE

Federal and state regulations pervade nearly every

aspect of home building, agriculture, and every other

significant sector of the American economy (including, as

petitioner has learned, criminal activities forbidden by

law).

Unsurprisingly, therefore, the reliability and enforceability of federal regulations directly affect amici’s members’ daily lives. Any citizen—including criminal defendants like petitioner—should be able to trust that a regu-

7

lation means what it says, and, more importantly, that

courts will not allow agencies to evade the plain meaning

of regulations adopted by those very agencies. For businesses, judicial commitment to that rule-of-law principle

can make the difference between profit and loss—or even

between solvency and bankruptcy. Before Kisor, however, Auer deference posed a serious threat to the public’s

ability to repose confidence in the judicial enforcement of

federal regulations.

A. Courts—like the Second Circuit—deferred to

Guidelines “commentary” and other interpretive rules because they understood this Court’s

pre-Kisor precedent to require such deference

The petition describes in great detail the underlying

question: whether Auer deference requires courts to accept Sentencing Commission “commentary” that adds

inchoate offenses to Guideline §4B1.2(b)’s definition of

“controlled substance offense” when the Guideline definition itself unambiguously does not go so far. The Third

Circuit’s recent decision in United States v. Nasir concisely and accurately addresses the premise—i.e., that

the Guideline itself indeed is unambiguous in not including inchoate offenses. __ F.3d __, 2020 WL 7041357, *89, No. 18-2888 (3d Cir. Dec. 1, 2020) (en banc).

1. This case asks why some courts still follow “commentary” (the equivalent of an interpretive rule) rather

than the Guideline itself (subject to notice and comment,

like typical regulations). See Pet. 6-7. But before addressing that, the underlying question is why courts ever

elevated commentary over text. The answer illustrates

how deeply pervasive the judicial instinct was to defer—

even when substantial portions of a human being’s life

(nine extra years in prison in this case) is at stake.

Essentially, the Second Circuit decided in 1995 the

same thing that the Third Circuit had decided in 1994—

8

that a decision from this Court in 1993 required such

marked deference:

 Stinson v. United States, 508 U.S. 36, 44-46 (1993),

appeared to direct that commentary to Guidelines

must be followed as a default (but still allowed the

Guideline to trump if there was no way to square

the commentary with it).

 United States v. Hightower, 25 F.3d 182, 187 (3d

Cir. 1994), found that the commentary must be

obeyed under Stinson, even though it “expand[ed]” the scope of Guideline §4B1.2(b)’s definition.

 United States v. Jackson, 60 F.3d 128, 131 (2d Cir.

1995), reached the identical result—essentially

that, with enough stretching, the Guideline could

be made to accommodate the commentary.

Stinson expressly followed Bowles v. Seminole Rock

& Sand Co., 325 U.S. 410 (1945). Auer in turn underscored and extended Seminole Rock (thus, while calling

Stinson an application of “Auer deference” may technically be anachronistic, it is nonetheless substantively accurate). While not every court thought that Guideline

§4B1.2 could be manipulated enough to coexist with the

commentary,4 cases like Hightower and Jackson were

more than defensible at the time. Indeed, just two weeks

ago, the en banc Third Circuit openly put it this way:

“Our interpretation of the commentary” to §4B1.2 in

Hightower “was informed by the then-prevailing understanding of the deference that should be given to agency

interpretations of their own regulations.” Nasir, 2020

WL 7041357, at *8.

Quite right: Stinson was not a one-off, but rather one

4

See infra p. 11 (discussing the D.C. and Sixth Circuit opinions in

2018 and 2019).

9

star in a larger constellation that signaled to lower courts

this Court’s mandate of judicial submission to administrative agencies’ interpretation of their regulations—

even when an agency’s interpretation was informal, casual, and without notice to the public. Auer itself was just

the brightest of those stars. Until Kisor substantially

curtailed the entire doctrine, Auer systematized—and

provided an especially agency-favoring exposition of—

the preexisting principle that courts must defer to an

agency’s interpretation of its own regulations, unless that

interpretation is plainly erroneous or flatly inconsistent

with a regulation’s text. See, e.g., Decker v. Nw. Envtl.

Def. Ctr., 568 U.S. 597, 613-614 (2013).

2. Federal administrative agencies unsurprisingly responded to this most welcome solicitude. The Chief Justice remarked that “[q]uestions of * * * Auer deference

arise as a matter of course on a regular basis.” Decker,

568 U.S. at 616 (Roberts, C.J., concurring). And why

not? Agencies reflexively invoked Seminole Rock or Auer whenever challenged because they expected that federal courts, equally reflexively, would yield to that invocation.5 Agencies only needed—and courts typically

found—some lawyerly way to squeeze a hint of ambiguity

out of what may have been a lengthy, complex rule.

The consequences for amici’s members were massive.

As then-Judge Kavanaugh observed, under Auer, a

judge’s “simple threshold determination of clarity versus

ambiguity may affect billions of dollars, the individual

rights of millions of citizens, and the fate of clean air

rules, securities regulations, labor laws, or the like.”

Brett M. Kavanaugh, Fixing Statutory Interpretation,

5

Amici filed a brief on the merits in Kisor that provided various

illustrations, particularly those relevant to their members. See

http://www.supremecourt.gov/DocketPDF/18/18-15/86447/2019013

1110632766_18-15tsacNationalAssociationOfHomeBuilders.pdf.

10

129 Harv. L. Rev. 2118, 2153 (2016). Some courts applied

Auer so reflexively that they deferred even without identifying a regulatory ambiguity to resolve. See, e.g., W.

Mass. Elec. Co. v. FERC, 165 F.3d 922 (D.C. Cir. 1999)

(allowing FERC to splice missing words into a regulation

without first identifying an ambiguity, frustrating a series of multi-million-dollar interconnection agreements).

For amici’s members—even sophisticated participants in

regulated industries, not to mention the many small

businesses—attempting to overcome such extreme deference in judicial challenges was often cost-prohibitive if

not utterly pointless. Even so, Auer enabled disruptions

of settled understandings and unfair surprise, including

in this Court. See, e.g., Sec’y of Labor v. Beverly

Healthcare-Hillview, 541 F.3d 193, 201 (3d Cir. 2008)

(applying Auer and reversing a finding that a nursing

home lacked fair notice of an agency interpretation, despite “studiously vague” compliance directives and conflicting agency guidance).

3. Over time, as the kudzu of Auer deference became

impossible to politely ignore any longer, Justices of this

Court began to express dissatisfaction with its own precedent. Auer seemed in no real danger until 2011, when

Justice Scalia—the very author of Auer—began publicly

sounding an alarm that something had gone seriously

amiss. “It is comforting to know that I would reach the

Court’s result even without Auer. For while I have in the

past uncritically accepted that rule, I have become increasingly doubtful of its validity.” Talk Am., Inc. v.

Mich. Bell Tel. Co., 564 U.S. 50, 68 (2011) (Scalia, J., concurring). He particularly worried about the misaligned

incentives that Auer created, among other problems. Id.

at 69.6

6

In Kisor, the portion of Justice Kagan’s opinion that did not speak

for the majority acknowledged this misaligned incentive, but also

11

Two years after that, Justice Scalia repudiated Auer

altogether, as other Justices expressed comparable

doubts. Given how the lower courts and federal agencies

had read and applied Auer, he repudiated his own prior

decision: “Enough is enough.” Decker, 568 U.S. at 616

(Scalia, J., concurring in part, dissenting in part); id. at

621.

4. In 2018 and 2019, as the winds appeared to be

changing, two circuits considered the very question that

Hightower and Jackson had resolved two decades earlier. With Auer in seeming decline, despite remaining

formally intact, they concluded that no Auer deference

was due. Even while bound by Auer, those courts found

that there was no need to defer to §4B1.2’s commentary

because §4B1.2 itself was so clear and unambiguous that

even Stinson did not require deference. See United

States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc)

(per curiam) (precedeing Kisor by only a few weeks);

United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018)

(the year before Kisor).

B. Kisor changed everything—and eliminated any

basis for deferring to §4B1.2’s commentary

Shortly after the D.C. and Sixth Circuit decisions, this

Court decided Kisor v. Wilkie. The Guideline §4B1.2

question started as a seemingly routine application of

Auer deference in the 1990s, became a debatable Auer

question in the years leading up to Kisor, but was transformed by Kisor into an improper relinquishment of the

judicial power.

1. Kisor did not overrule Auer altogether—but it

fundamentally changed the landscape and “cabined Auer’s scope in varied and critical ways.” 139 S. Ct. at 2418.

expressed doubt that agencies really acted on the incentive. 139

S. Ct. at 2421 (op. of Kagan, J.).

12

The Chief Justice—the essential fifth vote who did not

join all parts of the opinion—wrote separately to emphasize how much had changed. “[T]he distance between the

majority and Justice Gorsuch is not as great as it may

initially appear,” he explained. Id. at 2424 (Roberts, C.J.,

concurring in part). Speaking for four Justices, Justice

Gorsuch would have overruled Auer entirely; regardless,

he wrote, “the doctrine emerges maimed and enfeebled—

in truth, zombified.” Id. at 2425 (Gorsuch, J., concurring

in judgment).

The main difference may be that Justice Gorsuch’s

approach would have erased all Auer-based jurisprudence, while the majority saved some of it. Decisions relying on Auer that fail Kisor’s test became vulnerable,

while others that satisfy Kisor’s test remain intact. The

only question is in which category Jackson and Hightower (and other cases of this sort from other circuits) fall.

2. The Third Circuit rightly held that Hightower

cannot survive Kisor. It suggested that it agreed with

the D.C. and Sixth Circuits—that even without Kisor the

question should have gone the other way—but made

clear that Kisor eliminated any doubt. In Hightower, it

explained, “we may have gone too far in affording deference,” but “after the Supreme Court’s decision last year

in Kisor v. Wilkie, it is clear that such an interpretation

is not warranted.” Nasir, 2020 WL 7041357, at *8 (citation omitted).

The most cursory review of Kisor shows how clearly

true this is. The mere “possibility of deference can arise

only if a regulation is genuinely ambiguous. And when

we use that term, we mean it—genuinely ambiguous,

even after a court has resorted to all the standard tools of

interpretation.” Kisor, 139 S. Ct. at 2414 (emphasis added). “If uncertainty does not exist, there is no plausible

reason for deference.” Id. at 2415. When there is no es-

13

sential ambiguity, and an agency simply posits that it

would be better if the regulation said something different, “[d]eference in that circumstance would ‘permit the

agency, under the guise of interpreting a regulation, to

create de facto a new regulation.’” Ibid. (quoting Christensen v. Harris Cty., 529 U.S. 576, 588 (2000)).

But the commentary at issue here—“Application

Note 1” to §4B1.2 of the Guidelines—does exactly what

all Justices in Kisor deem disqualifying. Guideline

§4B1.2(b) articulates what a “controlled substance offense” is, listing only completed crimes. The Sentencing

Commission’s commentary, however, adds to the actual

Guideline, saying that it also “include[s]” inchoate offenses like “attempt[s] to commit such offenses.” §4B1.2

cmt. n.1. Whether §4B1.2’s text includes inchoate offenses is a legal question. It does not present a situation

where an expert agency requires discretion to apply a

general rule to unique facts—a circumstance where “the

law runs out, and policy-laden choice is what is left over,”

thus making Auer deference at least potentially legitimate. See Kisor, 139 S. Ct. at 2415. To the contrary, the

meaning of the “law”—the actual Guideline—is perfectly

understandable to a court.7

In short, Kisor has eliminated the foundation for deference on which the lower courts built their adherence to

§4B1.2’s commentary rather than to §4B1.2 itself.

7

For two years, the Sentencing Commission has been contemplating changing this Guideline in a proper way—moving the language

from the note into the text. See 83 Fed. Reg. 65,400, 65,412-65,415

(Dec. 20, 2018). Even if it eventually does so, that would not “moot”

this or other pending cases, and the methodological issue that the

Court would decide transcends the specific context of this particular

Guideline or application note. That such a step (amendment of the

Guideline) is even feasible illustrates that courts can read the current Guideline just fine—and that the proposed amendment cannot

mean the same thing that the Guideline’s text already says.

14

C. Leaving the circuit split in place would discourage rigorous application of Kisor, thus

transcending the sentencing context

1. Kisor acknowledged the “mixed messages we have

sent” about Auer and grasped “the opportunity * * * to

clear up” the misconceptions that had taken root. 139

S. Ct. at 2414. “At times,” the Court continued,

this Court has applied Auer deference

without significant analysis of the underlying regulation. At other times, the Court

has given Auer deference without careful

attention to the nature and context of the

interpretation. And in a vacuum, our most

classic formulation of the test—whether an

agency’s construction is “plainly erroneous

or inconsistent with the regulation,” may

suggest a caricature of the doctrine, in

which deference is “reflexive.”

Ibid. (citations and parentheticals omitted).

The last sentence in that quotation has particular

bearing in this case (and many others). Stinson quoted

the very language (“plainly erroneous or inconsistent

with the regulation”) that Kisor deemed indicative of a

“caricature” and leading to “reflexive” deference. See

Stinson, 508 U.S. at 45. But that language, which Kisor

repudiated, is what Hightower and Jackson both rested

upon. See Hightower, 25 F.3d at 184, 187; Jackson, 60

F.3d at 131.

In other words, there can be no argument that Kisor

expressly changed—indeed, eliminated—the core foundation of the case that is the basis of the judgment below.8 Nor are Hightower and Jackson alone—the Tenth

8

Notably, Justice Kennedy wrote Stinson—and when Kisor attacked the language used in Stinson (and many other cases), it did so

by quoting Justice Kennedy’s concurring opinion in Pereira v. Ses-

15

Circuit, for example, likewise relied on Stinson’s use of

that language to reach the same result. See United

States v. Martinez, 602 F.3d 1166, 1174 (10th Cir. 2010).

Indeed, that’s the very point—courts considering the

question before 2011 reasonably read Supreme Court

precedents to require deference to “Application Note 1”

of Guideline §4B1.2.9

2. Granting this petition would help effectuate Kisor’s own acknowledgment that some case law would

have to fall in light of its decision. And failing to do so

would risk serious methodological consequences in derogation of Kisor. Treating Application Note 1 as if it has

the same force as the actual Guideline offers a potential

end-run around normal administrative rulemaking and

implicates precisely the same concerns that led courts to

question Auer in the first place. As a general matter, at

least, it would allow agencies “to control the extent of its

notice-and-comment-free domain” by strategically drafting a rule that was subject to notice and comment and,

after removing problematic portions (and thus immunizing them from post-promulgation challenges), to enforce

those removed portions anyway in the form of interpretations. Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 111

(2015) (Scalia, J., concurring in judgment); see also, e.g.,

Marsh v. J. Alexander’s LLC, 905 F.3d 610, 637-38, 642

(9th Cir. 2018) (en banc) (Ikuta, J., joined by Callahan, J.,

dissenting) (lamenting how the court allowed a substantive rule to masquerade as an interpretation under Auer—creating one of “the worst dangers of improper Seminole Rock and Auer deference”).

If the D.C. and Sixth Circuits divided from other

courts even before Kisor, it is only because the deference

extended to “Application Note 1” was already minimally

sions, 138 S. Ct. 2105, 2120 (2018) (Kennedy, J., concurring).

9

See infra Part II (further discussing the Tenth Circuit’s approach).

16

justified. Other administrative interpretations will fail

Kisor’s test, too—but perhaps less obviously than this

one. Accordingly, if this issue is not susceptible to methodological correction by this Court, agencies and lower

courts will be emboldened to retrench toward familiar

Auer practices for even slightly more complicated questions, and much more for those questions that are genuinely complex.

* * *

Judge Bibas, in his concurring opinion, described the

basis for the Third Circuit’s recent about-face:

Now the winds have changed. 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. Before deferring, we must first

exhaust our traditional tools of statutory

construction. Anything less is too narrow a

view of the judicial role.

Nasir, 2020 WL at *24 (Bibas, J., concurring in part).

But not all courts have been “awakened” in the same

way. If Kisor itself has not actually roused other courts,

as it did the Third Circuit, this Court should take further

action. A short, crisp, clear decision here would prevent

further efforts among other circuits to continue hitting

the snooze button.

II. OTHER PENDING PETITIONS ILLUSTRATE THE

ISSUE’S IMPORTANCE

At least two other petitions have been filed in this

Court after this one yet raising identical issues. Those

petitions illustrate that the need for this Court’s review is

ripe, acute, and will not abate.

The first is Lovato v. United States (No. 20-6436).

That petition challenges the Tenth Circuit’s decision in

17

United States v. Lovato, 950 F.3d 1337, 1347 (10th Cir.

2020), which applied that circuit’s §4B1.2 precedent that

(per Stinson) requires deference to the commentary.

See Martinez, 602 F.3d at 1173-1175. Martinez was a

pre-Kisor case that then-Judge Gorsuch joined. As these

amici noted in their Tenth Circuit brief supporting Lovato’s effort to obtain rehearing en banc, it is unlikely that

Judge Gorsuch—who, as Justice Gorsuch, urged overruling Auer altogether—agreed to the reasoning or result in

Martinez for any reason other than fidelity to the binding authority of this Court’s precedent. Liberated from

that precedent, the Tenth Circuit should have taken Lovato en banc to overrule Martinez. It refused, even

though it knew that the Third Circuit had already granted en banc review. Amici now reiterate their support.

Likewise, the Eighth Circuit continues to insist on

deference to §4B1.2’s commentary, as mandated by that

circuit’s equivalent of Hightower, Jackson, and Martinez.

See United States v. Mendoza-Figueroa, 65 F.3d 691, 693

(8th Cir. 1995) (en banc). In United States v. Broadway,

815 F. App’x 95, 96 & n.2 (8th Cir. 2020), a panel identified Kisor as potentially relevant to Mendoza-Figueroa,

but (likely incorrectly) claimed that even intervening Supreme Court authority prevented it from departing from

that §4B1.2 precedent. The Eighth Circuit has subsequently denied rehearing en banc in another case presenting the same issue. See United States v. Jefferson,

975 F.3d 700 (8th Cir. 2020) (reh’g en banc denied Oct.

28, 2020). Amici understand that, almost simultaneously

with the filing of this amicus brief, Broadway is filing a

petition in this Court to challenge the Eighth Circuit’s

adherence to Mendoza-Figueroa.

This deluge of petitions reflects the massive inconsistency in the circuits’ approach to Kisor, even in this

very narrow context. Amici recommend granting this

petition and either consolidating it with some or all of the

18

others (and others that may yet appear), or holding such

related petitions for disposition after the Court resolves

this case. At the very least, one of these petitions should

be granted—denying all of them would leave intact a

clear and deepening split and signal that courts will not

be held to account for disregarding Kisor.

* * *

Amici therefore respectfully urge the Court to hold

that Kisor prevents judicial deference to United States

Sentencing Commission commentary—or any other

agency’s comparable “interpretation”—when the language of the Guidelines or other regulations is clear. Doing so will better ensure that agencies regulate in a clear,

fair, and lawful manner—and that courts retain a firm

grip on their interpretive function.

Resolving this question will far transcend this petitioner’s specific sentence and even sentencing law generally. It will instead convey—to the regulated public, administrative agencies, and judges alike—that courts must

take Kisor seriously and apply it rigorously.

CONCLUSION

The petition for a writ of certiorari should be granted.

19

Respectfully submitted.

Megan H. Berge

BAKER BOTTS L.L.P.

700 K St., N.W.

Washington, D.C. 20001-5692

(202) 639-7700

Evan A. Young

Counsel of Record

BAKER BOTTS L.L.P.

98 San Jacinto Blvd.

Suite 1500

Austin, Texas 78701

(512) 322-2500

evan.young@bakerbotts.com

Counsel for Amici Curiae

AMY CHAI

THOMAS J. WARD

NATIONAL ASSOCIATION

OF HOME BUILDERS

1201 15th St. N.W.

Washington, D.C. 20005

(202) 266-8232

ELLEN STEEN

TRAVIS CUSHMAN

AMERICAN FARM BUREAU

FEDERATION

600 Maryland Ave., S.W.

Washington, D.C. 20024

(202) 406-3618

Counsel for Amicus Curiae

National Association of

Home Builders

Counsel for Amicus Curiae

American Farm Bureau

Federation

December 2020