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

-------------------------- ♦ --------------------------

AMICI CURIAE BRIEF OF

THE NEW CIVIL LIBERTIES ALLIANCE &

DUE PROCESS INSTITUTE

IN SUPPORT OF PETITIONER

-------------------------- ♦ --------------------------

SHANA-TARA O’TOOLE

DUE PROCESS INSTITUTE

700 Pennsylvania Ave. SE

#560

Washington, DC 20003

(202) 558-6683

Shana@idueprocess.org

Mark Chenoweth

Caleb Kruckenberg

Jared McClain

Counsel of Record

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

Jared.McClain@NCLA.

onmicrosoft.com

Counsel for Amici Curiae

Dated: December 16, 2020

i

QUESTIONS PRESENTED

The New Civil Liberties Alliance and the Due Process Institute, as amici curiae, will address the following questions necessary to resolving the circuit split

raised in Mr. Tabb’s petition:

(1) Do courts owe deference to Commission commentary that expands the Guidelines?

(2) Do the rule of lenity and the right to due process

preclude Stinson deference when commentary to a

Sentencing Guideline would increase a sentence?

ii

TABLE OF CONTENTS

Page

Questions Presented ............................................................ i

Table of Contents ................................................................ ii

Table of Authorities ........................................................... iii

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

Summary of Argument ...................................................... 2

Discussion ............................................................................ 6

I. After Kisor, Stinson Deference Cannot Increase

Criminal Penalties ........................................................ 6

A. Stinson Did Not Involve the Rule of Lenity ........ 6

B. Three Core Constitutional Principles

Compel Lenity ......................................................... 8

C. Lenity Is a Traditional Tool of Statutory

Interpretation

that

Applies

Before

Deference................................................................ 10

D. Lower Courts Are Split on Whether to

Prioritize Lenity over Stinson Deference .......... 13

II. This Court Should Grant the Petition to Narrow

the Scope of Stinson or Overturn It .......................... 16

A. Interpretive Deference Is Unconstitutional ...... 17

1. Stinson Deference Is Inconsistent with

Judicial Independence & the Judicial

Office ................................................................. 17

2. Stinson Violates Due Process by

Institutionalizing Judicial Bias..................... 20

B. Deference

to

the

Commission’s

Commentary Is Uniquely Inappropriate ........... 22

Conclusion .......................................................................... 23

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Abramski v. United States,

573 U.S. 169 (2014) ............................................... 7

Aposhian v. Barr,

973 F.3d 1151 (10th Cir.), vacating

958 F.3d 969 (10th Cir. 2020) ............................. 15

Auer v. Robbins,

519 U.S. 452 (1997) ........................................... 3, 6

Babbitt v. Sweet Home Chapter of

Cmts. for a Great Ore.,

515 U.S. 687 (1995) ....................................... 15, 16

Barber v. Thomas,

560 U.S. 474 (2010) ............................................. 16

Bifulco v. United States,

447 U.S. 381 (1980) ............................................... 8

Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410 (1945) ............................................... 8

Bray v. Atalanta,

4 F. Cas. 37 (D.S.C. 1794) ..................................... 8

Carter v. Welles-Bowen Realty, Inc.,

736 F.3d 722 (6th Cir. 2013) ............................... 11

Christensen v. Harris Cty.,

529 U.S. 576 (2000) ............................................. 10

Com. Coatings Corp. v. Cont’l Cas. Co.,

393 U.S. 145 (1968) ............................................. 20

United States v. Crum,

934 F.3d 963 (9th Cir. 2019), cert. denied,

140 S. Ct. 2629 (2020) ......................................... 15

iv

De Lima v. Sessions,

867 F.3d 260 (1st Cir. 2017) .......................... 11, 14

Edward J. DeBartolo Corp. v.

Fla. Gulf Coast Bldg. & Constr. Trades Council,

485 U.S. 568 (1988) ....................................... 11, 12

Esquivel-Quintana v. Sessions,

137 S. Ct. 1562 (2017) ..................................... 6, 16

United States v. Faison,

2020 WL 815699 (D. Md. 2020) ............................. 7

Georgia v. Brailsford,

2 U.S. 415 (1793) ................................................. 18

Guedes v. Bureau of Alcohol,

Tobacco, Firearms & Explosives,

140 S. Ct. 789 (2020) ....................................... 7, 16

In re Murchison,

349 U.S. 133 (1955) ............................................. 21

Kisor v. Wilkie,

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

Leocal v. Ashcroft,

543 U.S. 1 (2004) ................................................. 16

Liparota v. United States,

471 U.S. 419 (1985) ............................................... 9

M. Kraus & Bros. v. United States,

327 U.S. 614 (1946) ............................................... 8

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ......................... 17, 20

Marshall v. Jerrico, Inc.,

446 U.S. 238 (1980) ............................................. 20

Masterpiece Cake Shop, Ltd. v.

Colo. Civil Rights Comm’n,

138 S. Ct. 1719 (2018) ......................................... 20

v

McBoyle v. United States,

283 U.S. 25 (1931) ................................................. 9

Miller v. Johnson,

515 U.S. 900 (1995) ............................................. 19

Mistretta v. United States,

488 U.S. 361 (1989) ............................................. 22

Mitchell v. Wisconsin,

139 S. Ct. 2525 (2019) ........................................... 2

Murray v. Schooner Charming Betsy,

6 U.S. (1 Cranch) 64 (1804) ................................. 11

Parsons v. Bedford, Breedlove & Robeson,

28 U.S. (1 Pet.) 433 (1830) .................................. 11

Perez v. Mortgage Bankers Ass’n,

572 U.S. 92 (2015) ............................................... 19

Prohibition del Roy,

12 Co. Rep. 63 (1608)........................................... 17

Solid Waste Agency of N. Cook Cty. v.

U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001)................................................... 16

Stinson v. United States,

508 U.S. 36 (1993) ....................................... passim

TetraTech, Inc. v. Wisc. Dep’t of Revenue,

914 N.W.2d 21 (Wisc. 2018) ................................ 20

The Julia,

14 F. Cas. 27 (C.C.D. Mass. 1813) ...................... 18

Timbs v. Indiana,

139 S. Ct. 682 (2019) ............................................. 3

Tumey v. Ohio,

273 U.S. 510 (1927) ............................................. 22

United States v. Bass,

404 U.S. 336 (1971) ......................................... 9, 13

vi

United States v. Booker,

543 U.S. 220 (2005) ......................................... 8, 10

United States v. Burr,

25 F. Cas. 2 (C.C.D. Va. 1807) ............................ 19

United States v. Cantu,

423 F. Supp. 3d 345 (S.D. Tex. 2019) ................. 14

United States v. Cingari,

952 F.3d 1301 (11th Cir. 2020), cert. denied,

No. 20-5937 (Nov. 9, 2020) ..................... 4, 5, 14-15

United States v. Davis,

139 S. Ct. 2319 (2019) ......................................... 12

United States v. Havis,

907 F.3d 439 (6th Cir. 2018) ....................... passim

United States v. Haymond,

139 S. Ct. 2369 (2019) ........................................... 2

United States v. Lewis,

963 F.3d 16 (1st Cir. 2020) .................................. 14

United States v. Martinez,

602 F.3d 1166 (10th Cir. 2010) ........................... 21

United States v. McClain,

23 F. App’x 544 (7th Cir. 2001) ........................... 13

United States v. Mendoza-Figueroa,

65 F.3d 691 (8th Cir. 1995) ............................. 3, 14

United States v. Moss,

872 F.3d 304 (5th Cir. 2017) ............................... 14

United States v. Nasir,

2020 WL 7041357 (3d Cir. Dec. 1, 2020) .... passim

United States v. Santos,

553 U.S. 507 (2008) ......................................... 8, 10

vii

United States v. Tabb,

949 F.3d 81 (2d Cir. 2020), cert. pending,

No. 20-579 (Nov. 2, 2020) .................................... 14

United States v. Thompson/Ctr. Arms Co.,

504 U.S. 505 (1992) ....................................... 10, 16

United States v. Watts,

896 F.3d 1245 (11th Cir. 2018) ........................... 15

United States v. Wiltberger,

18 U.S. (1 Wheat.) 76 (1820) ....................... 4, 8, 12

United States v. Winstead,

890 F.3d 1082 (D.C. Cir. 2018) ..................... 13, 14

Webster v. Fall,

266 U.S. 507 (1925) ............................................... 7

Whitman v. United States,

574 U.S. 1003 (2014) ....................................... 5, 16

Yarborough v. Alvarado,

541 U.S. 652 (2004) ............................................. 20

Yi v. Fed. Bureau of Prisons,

412 F.3d 526 (4th Cir. 2005) ............................... 15

CONSTITUTIONAL PROVISIONS

U.S. CONST. amend. V ............................................... 16

U.S. CONST. art. III ............................................... 2, 16

U.S. CONST. pmbl. ....................................................... 9

U.S. CONST., ART. III, § 1 ........................................... 18

U.S. CONST., ART.................................................. 18, 20

STATUTE

18 U.S.C. § 3553(b) ................................................... 20

viii

RULE

Sup. Ct. R. 37 .............................................................. 1

SENTENCING GUIDELINES

U.S.S.G. § 1B1.13 cmt. n.1(D) .................................. 14

U.S.S.G. § 4B1.2 ....................................................... 14

U.S.S.G. § 4B1.2 n.1 ................................................. 22

OTHER AUTHORITIES

Records of the Federal Convention of 1787

(Max Farrand ed., Yale Univ. Press 1911) ........ 17, 18

James Iredell, To the Public, N.C. Gazette

(Aug. 17, 1786) .......................................................... 18

Livingston Hall, Strict or Liberal Construction

of Penal Statutes, 48 HARV. L. REV. 748 (1935) ......... 8

Philip Hamburger, Chevron Bias, 84 GEO.

WASH. L. REV. 1187 (2016) ....................................... 21

Philip Hamburger, Law and Judicial Duty

(2008)................................................................... 17, 18

The Declaration of Independence ............................ 17

THE FEDERALIST No. 78 (Alexander Hamilton) ....... 18

1

INTEREST OF AMICI CURIAE

The New Civil Liberties Alliance (“NCLA”) is a

nonpartisan, nonprofit civil rights organization and

public-interest law firm. Professor Philip Hamburger

founded NCLA to challenge multiple constitutional

defects in the modern administrative state through

original litigation, amicus curiae briefs, and other advocacy.1

NCLA views the administrative state as an especially serious threat to civil liberties. No other current legal development denies more rights to more

Americans. Although we still enjoy the shell of our

Republic, a very different sort of government has developed within it—a type, in fact, that our Constitution was designed to prevent. NCLA aims to defend

civil liberties—primarily by asserting constitutional

constraints on the modern administrative state.

Although Americans still enjoy the shell of their Republic, a very different sort of government has developed within it—a type, in fact, that the Constitution

was designed to prevent. This unconstitutional state

within the Constitution’s United States is the focus of

NCLA’s concern.

NCLA is particularly disturbed by the widespread

practice of extending judicial “deference” to the commentary of the United States Sentencing Commission. See Stinson v. United States, 508 U.S. 36 (1993).

This deference regime raises grave constitutional

concerns that this Court has never considered or

discussed. As set out below, several constitutional

1 Pursuant to Rule 37, both parties consented to the filing of

this brief. No counsel for a party authored any part of this brief.

No one other than the amici curiae, their members, or their counsel financed the preparation or submission of this brief.

2

problems arise when Article III judges abandon their

duty of independent judgment and “defer” to someone

else’s views about how the criminal laws should be interpreted.

Due Process Institute is a bipartisan, non-profit,

public-interest organization that works to honor, preserve, and restore principles of fairness in the criminal justice system. Formed in 2018, the Institute has

participated as an amicus curiae before this Court in

cases presenting important criminal justice issues,

including Timbs v. Indiana, 139 S. Ct. 682

(2019); Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019);

and United States v. Haymond, 139 S. Ct. 2369

(2019). The issues raised in this brief are essential to

protecting principles of due process and fundamental

fairness in America’s federal sentencing regime.

SUMMARY OF ARGUMENT

When this Court decided Kisor v. Wilkie two

Terms ago, all nine Justices agreed on the need to “reinforce” and “further develop” the limitations on the

deference that courts owe to an administrative

agency’s interpretation of its own rules. 139 S. Ct.

2400, 2408, 2415 (2019); id. at 2424 (Roberts, C.J.,

concurring); id. at 2448 (Gorsuch, J., concurring in

judgment); id. at 2448-49 (Kavanaugh, J., concurring

in judgment). Kisor held that courts could defer to an

agency’s interpretation only if a regulation proves

“genuinely ambiguous” after a court has “exhaust[ed]

all the ‘traditional tools of construction.’” Id. at 2415.

Prior to Kisor, courts had been deferring “reflexive[ly]” to agencies’ regulatory interpretations, without first conducting their own exhaustive textual

analysis like the Constitution requires. See ibid. As

3

the Court acknowledged in Kisor, this reflexive deference was likely the result of the “mixed messages” the

Court sent in cases that “applied Auer deference without significant analysis of the underlying regulation.”

Id. at 2414.

Of all the mixed messages this Court has sent

about the appropriate role of agency deference, the

1993 decision in Stinson v. United States has been

among the most damaging given its application during criminal sentencing. 508 U.S. 36, 38 (1993). In

Stinson, the Court ruled that courts must defer to the

United States Sentencing Commission’s commentary

interpreting the Sentencing Guidelines unless that

commentary “is inconsistent with, or a plainly erroneous reading of, that guideline.” Ibid. Stinson held

that such deference was appropriate even if the interpretation “may not be compelled by the guideline

text.” Id. at 47.

Following Stinson, the courts of appeal began to

give “nearly dispositive weight” to the Commission’s

commentary over “the Guidelines’ plain text.” United

States v. Nasir, 2020 WL 7041357, at *24 (3d Cir. Dec.

1, 2020) (en banc) (Bibas, J., concurring in part); see

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

692-63 (8th Cir. 1995) (en banc) (“Every court has

agreed that the Commission’s extensive statutory authority to fashion appropriate sentencing guidelines

includes the discretion to include drug conspiracy offenses in the category of offenses that warrant increased prison terms for career offenders.”).

It is no coincidence that several courts of appeals

read Stinson as requiring reflexive deference—they

have relied on the explicit language in Stinson. Take

the Eleventh Circuit for example. To this day, the

4

Eleventh Circuit quotes Stinson for its rule that “the

commentary for a guideline remains authoritative

‘unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous

reading of, that guideline.” United States v. Cingari,

952 F.3d 1301, 1308 (11th Cir. 2020) (quoting Stinson,

508 U.S. at 38), cert. denied, No. 20-5937 (Nov. 9,

2020). Commission commentary loses its “authoritative … status” in the Eleventh Circuit only “if it is ‘inconsistent with, or a plainly erroneous reading of,

that guideline.’” Ibid (quoting Stinson, 508 U.S. at

38). With no inquiry at all concerning a Guideline’s

ambiguity, Stinson deference is reflexive by its very

terms.

To their credit, the Third, Sixth, and D.C. Circuits

have recognized that a strict reading of Stinson is inconsistent with this Court's modern administrativelaw jurisprudence, the Sentencing Commission’s legal

authority, and the Constitution. Seven other circuits,

however, adhere to the outdated language in Stinson

and refuse to reconsider their circuit precedent in

light of Kisor. Further percolation will not resolve a

dispute that stems from this Court’s own mixed signals.

Moreover, this Court’s guidance is needed to resolve the “broader problem” that arises once the other

seven circuits awake “from [their] slumber of reflexive

deference.” Nasir, 2020 WL 7041357, at *24 (Bibas,

J.). Kisor made clear that courts must exhaust the

“traditional tools of construction” before deferring to

an angecy. 139 S. Ct. at 2415. The rule of lenity is a

traditional tool of construction “perhaps not much less

old than construction itself” that protects core liberties against government intrusion. United States v.

Wiltberger, 18 U.S. (1 Wheat.) 76, 95 (1820). The

5

courts of appeals, however, are starkly divided on

whether lenity applies before deference, or whether it

even applies at all. Compare Nasir, 2020 WL

7041357, at *25 (Bibas, J.) (“A key tool in that judicial

toolkit is the rule of lenity.”), with Cingari, 952 F.3d

at 1310-11 (“cast[ing] doubt” on whether lenity applies before Stinson deference).

Again, this circuit split results from this Court’s

lack of clarity on the issue. See, e.g., Whitman v.

United States, 574 U.S. 1003 (2014) (Scalia J., joined

by Thomas, J., statement respecting denial of certiorari) (collecting cases to demonstrate that this Court’s

anti-lenity statements “contradict[] the many cases

before and since holding that, if a law has both criminal and civil applications, the rule of lenity governs

its interpretation in both settings”).

Mr. Tabb’s petition, along with those pending in

Broadway v. United States, No. 20-____ (filed Dec. 16,

2020); and Lovato v. United States, No. 20-6436 (Nov.

25, 2020), present this Court a critical opportunity to

clarify once and for all that courts do not owe deference to Commission commentary that expands the

Sentencing Guidelines and/or makes sentences

harsher. Each passing Term, district courts in seven

circuits systematically violate the due-process rights

of criminal defendants by applying Stinson deference

to increase the Sentencing Guideline range approved

by Congress. With the liberty of so many at stake,

there is no excuse to wait.

6

DISCUSSION

I. AFTER KISOR, STINSON DEFERENCE CANNOT INCREASE CRIMINAL PENALTIES

After this Court decided Kisor, one might have expected the courts of appeal to take heed and apply its

holding to other cases involving Auer deference. But

Mr. Tabb’s petition, along with those in Broadway

and Lovato, show that widespread misapplication of

that deference regime still persists and will continue

to do so until this Court intervenes.

Lower-court judges are openly divided about how

Kisor limited Stinson and how rigorously judges must

analyze the Guidelines’ text before deferring to commentary. Such a disparity in how judges interpret

text would be unacceptable for any federal rules that

require uniformity, but it is singularly inexcusable in

the case of criminal sentencing, when liberty is at

stake. The very purpose of the Guidelines is to promote uniformity in sentencing. And the Constitution

requires that judges uniformly interpret any ambiguity in the Guidelines in the defendant’s favor.

A. Stinson Did Not Involve the Rule of Lenity

The Court in Stinson had no occasion to consider

what role lenity would play in its deference regime because the commentary at issue in that case militated

in favor of a more lenient sentence for Stinson. See 508

U.S. at 47-48. The Court in Stinson, therefore, did not

grapple with the constitutional issues inherent when

Stinson deference applies to increase a criminal penalty. No subsequent decision of this Court has done

so either. Cf. Esquivel-Quintana v. Sessions, 137 S.

Ct. 1562, 1572 (2017) (declining to “resolve whether

the rule of lenity or Chevron receives priority” because

the statute at issue was unambiguous); see also

7

Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions

which merely lurk in the record, neither brought to

the attention of the court nor ruled upon, are not to be

considered as having been so decided as to constitute

precedents.”). Unlike in Stinson, however, deference

to the Commission in this case required the court to

impose a stricter sentence on Mr. Broadway, so

“alarm bells should be going off.” United States v.

Havis, 907 F.3d 439, 459 (6th Cir. 2018) (Thapar, J.).

“[W]hen liberty is at stake,” deference “has no role

to play.” Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 140 S. Ct. 789, 790 (2020) (Gorsuch, J., statement regarding denial of certiorari).

“Penal laws pose the most severe threats to life and

liberty, as the Government seeks to brand people as

criminals and lock them away.” Nasir, 2020 WL

7041357, at *25 (Bibas, J.). There is no greater liberty

interest in life than to be free from a cage. See Faison,

2020 WL 815699, at *1 (“Liberty is the norm; every moment of incarceration should be justified.”). For a defendant, “every day, month and year that was added to

the ultimate sentence will matter. … [T]he difference

between probation and fifteen days may determine

whether the defendant is able to maintain his employment and support his family.” Ibid. Any increase in

a criminal sentence must comport with due process.

“[I]t is crucial that judges give careful consideration

to every minute that is added to a defendant’s sentence.” Ibid. “The critical point is that criminal laws

are for courts, not for the Government, to construe.”

Abramski v. United States, 573 U.S. 169, 191 (2014)

(“[W]e have never held that the Government’s reading

of a criminal statute is entitled to any deference.”).

This is not a new concept. The rule of lenity is one

of the original tools of statutory construction. See

8

Wiltberger, 18 U.S. (1 Wheat.) at 95; see also Bray v.

Atalanta, 4 F. Cas. 37, 38 (D.S.C. 1794) (ruling that

“a penal law [] must be construed strictly”). In simple

terms, “[t]he rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants

subjected to them.” United States v. Santos, 553 U.S.

507, 514 (2008). The rule also applies to guard

against increases in punishment, not merely to determine whether the defendant’s conduct is criminal in

the first place. Bifulco v. United States, 447 U.S. 381,

387 (1980) (“[T]he Court has made it clear that [lenity] applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the

penalties they impose.”); M. Kraus & Bros. v. United

States, 327 U.S. 614, 621-22 (1946) (plurality) (holding, one year after Seminole Rock, “to these provisions

must be applied the same strict rule of construction

that is applied to statutes defining criminal action”).

In fact, lenity “first arose to mitigate draconian sentences.” Nasir, 2020 WL 7041357, at *24 (Bibas, J.)

(citing Livingston Hall, Strict or Liberal Construction

of Penal Statutes, 48 HARV. L. REV. 748, 749-51

(1935)).

Lenity applies with equal force to the Guidelines,

which “exert a law-like gravitational pull on sentences.” Nasir, 2020 WL 7041357, *25 (Bibas, J.) (citing United States v. Booker, 543 U.S. 220, 265 (2005)

(Breyer, J., remedial majority opinion)).

B. Three Core Constitutional

Compel Lenity

Principles

Three “core values of the Republic” underlie the

rule of lenity: (1) due process; (2) the separation of

governmental powers; and (3) “our nation’s strong

preference for liberty.” Id. at *24-25. Due process

9

requires that “a fair warning should be given to the

world in language that the common world will understand, of what the law intends to do if a certain line is

passed. To make the warning fair, so far as possible

the line should be clear.” McBoyle v. United States,

283 U.S. 25, 27 (1931). By construing ambiguities in

the defendant’s favor, lenity prohibits criminal consequences when Congress did not provide a fair warning

through clear statutory language. Lenity also protects the separation of powers: the legislature criminalizes conduct and sets statutory penalties, the executive prosecutes crimes and can recommend a sentence, and the judiciary sentences defendants within

the applicable statutory framework. United States v.

Bass, 404 U.S. 336, 348 (1971). Lenity “strikes the

appropriate balance between the legislature, the prosecutor, and the court in defining criminal liability.”

Liparota v. United States, 471 U.S. 419, 427 (1985).

Finally, and “perhaps most importantly,” Nasir, 2020

WL 7041357, at *28 (Bibas, J.), lenity “embodies ‘the

instinctive distaste[] against men languishing in

prison unless the lawmaker has clearly said they

should.’” Bass, 404 U.S. at 347 (citation omitted).

This “presumption of liberty remains crucial to guarding against overpunishment.”

Nasir, 2020 WL

7041357, at *26 (Bibas, J.) (describing lenity as “a

shield against excessive punishment and stigma”). By

promoting liberty, lenity “fits with one of the core purposes of our Constitution, to ‘secure the Blessings of

Liberty’ for all[.]” Id. at *25 (quoting U.S. Const.

pmbl.).

In addition to securing these core values, the rule

of lenity also serves a practical purpose. Lenity

“places the weight of inertia upon the party that can

best induce [law-makers] to speak more clearly[.]”

10

Santos, 553 U.S. at 514. Stinson deference undermines this incentive system and reverses the inertia

in the rule-maker’s favor.

Given the dispositive weight that seven circuits afford to Commission commentary, the commentary becomes almost more controlling than the text of the

Guidelines themselves. Cf. United States v. Booker,

543 U.S. 220, 258 (2005) (striking the portion of the

Sentencing Reform Act that made the Guidelines

mandatory). This incongruity leaves little reason for

the Commission to strive for clarity in the Sentencing

Guidelines it submits to Congress when it can effectively amend those Guidelines by simply amending

the commentary guidance at any time without congressional approval. See Christensen v. Harris Cty.,

529 U.S. 576, 588 (2000) (deferring to an agency’s position on an unambiguous rule “would be to permit the

agency, under the guise of interpreting a regulation,

to create de facto a new regulation”).

C. Lenity Is a Traditional Tool of Interpretation that Applies Before Deference

Two principles of statutory interpretation support

prioritizing lenity over deference. First, as this Court

reiterated in Kisor, a court cannot defer to an agency

until after it empties its “legal toolkit” of “all the ‘traditional tools’ of construction.” 139 S. Ct. at 2418.

The rule of lenity is one such traditional “rule of statutory construction” in this Court’s toolkit. United

States v. Thompson/Ctr. Arms Co., 504 U.S. 505,

518 (1992) (cleaned up); Nasir, 2020 WL 7041357, at

*25 (Bibas, J.) (“A key tool in that judicial toolkit

is the rule of lenity.”). Like other “presumptions, substantive canons and clear-statement rules,” lenity

must “take precedence over conflicting agency views.”

11

Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 731

(6th Cir. 2013) (Sutton, J., concurring) (collecting

cases). Agency deference must come last because

“[r]ules of interpretation bind all interpreters, administrative agencies included.” Ibid. “That means an

agency, no less than a court, must interpret a doubtful

criminal statute in favor of the defendant.” Ibid; see

also De Lima v. Sessions, 867 F.3d 260, 265 (1st Cir.

2017) (“Courts that say lenity doesn’t apply until last

miss the fact that agencies, like courts, are supposed

to apply statutory canons of interpretation, which include lenity.”).

Accordingly, as a traditional tool of construction,

“lenity takes precedence” over Stinson deference. Nasir, 2020 WL 7041357, at *26 (Bibas, J.). Whenever a

guideline is ambiguous, the court must adopt the

more lenient reading—regardless of what the Commission has said in its commentary. Ibid.

Second, lenity allows courts to avoid the constitutional concerns inherent in construing an ambiguous

statute against a criminal defendant. When “an otherwise acceptable construction of a statute would

raise serious constitutional problems,” courts “will

construe the statute to avoid such problems unless

such construction is plainly contrary to the intent of

Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf

Coast Bldg. & Constr. Trades Council, 485 U.S. 568,

575 (1988); see also Parsons v. Bedford, Breedlove &

Robeson, 28 U.S. (1 Pet.) 433, 448-49 (1830) (Story, J.)

(“No court ought, unless the terms of an act rendered

it unavoidable, to give a construction to it which

should involve a violation, however unintentional, of

the constitution.”); Murray v. Schooner Charming

Betsy, 6 U.S. (1 Cranch) 64, 118 (1804) (Marshall,

C.J.) (same).

12

Lenity and constitutional avoidance operate symbiotically when a criminal statute is ambiguous. See

United States v. Davis, 139 S. Ct. 2319, 2333 (2019)

(describing the doctrines as “traditionally sympathetic” to one another). Just as lenity avoids construing ambiguity against a criminal defendant in violation of due process and the separation of powers, so

too does the constitutional-avoidance doctrine. See

ibid (“Applying constitutional avoidance to narrow a

criminal statute, as this Court has historically done,

accords with the rule of lenity.”).

No similar constitutional concerns necessitate the

application of Stinson deference, which lacks any constitutional underpinning. See Nasir, 2020 WL

7041357, at *26 (Bibas, J.) (“There is no compelling

reason to defer to a Guidelines comment that is

harsher than the text.”); Havis, 907 F.3d at 451

(Thapar, J.) (“Such deference is found nowhere in the

Constitution—the document to which judges take an

oath.”). Rather than the Constitution, agency deference is “rooted in a presumption about [the drafter’s]

intent”; though, the presumption is “always rebuttable.” Kisor, 139 S. Ct. at 2412. In the criminal context, this presumption must give way to a strict reading of the statute. Wiltberger, 18 U.S. at 95. Prioritizing deference over lenity offends due process and

violates the judicial oath to uphold the Constitution.

DeBartolo Corp., 485 U.S. at 575 (construing ambiguity to avoid constitutional infirmity because “Congress, like this Court, is bound by and swears an oath

to uphold the Constitution”). “Whatever the virtues”

of agency deference in civil cases, “in criminal justice

those virtues cannot outweigh life and liberty. Efficiency and expertise do not trump justice.” Nasir,

2020 WL 7041357, at *26 (Bibas, J.). When a statute

13

with criminal penalties is ambiguous, therefore

“doubts are resolved in favor of the defendant.” Bass,

404 U.S. at 347. Lenity leaves no room for deference.

D. Lower Courts Are Evenly Split on

Whether to Prioritize Lenity over Stinson

Deference

The circuit courts are effectively split six to six

about what role, if any, Kisor (née Auer) deference

plays in interpreting criminal penalties. That split

extends to Stinson cases.

Judges within the Third, Sixth, Seventh and likely

the First, Fifth, and D.C. Circuits, would apply lenity

before deferring to the Commission’s interpretation of

its guidelines.

In his Nasir concurrence, Judge Bibas opined that

the rule of lenity “displaces” deference to the Commission’s commentary. 2020 WL 7041357, at *26. He observed, however, that deference might still be appropriate when the commentary does not “tilt toward

harshness,” as in Stinson. Ibid.

Judge Thapar expressed a similar view on lenity

in his concurrence to the panel decision in Havis. He

explained that deference has no place in construing

sentencing commentary because lenity should apply

when the commentary would render a sentence

harsher and, even when not, deference would still “deprive the judiciary of its ability to check the Commission’s exercise of power.” Havis, 907 F.3d at 450-51

(Thapar, J.).

The Seventh Circuit “consider[s] rule of lenity arguments when a defendant argues that a particular

sentencing guideline is ambiguous.” United States v.

McClain, 23 F. App’x 544, 548 (7th Cir. 2001) (collecting cases). And the panel in Winstead noted its belief

14

that, although it was unnecessary to apply lenity because Guideline § 4B1.2 is unambiguous, “it is not obvious how the rule of lenity is squared with Stinson’s

description of the commentary’s authority to interpret

guidelines. We are inclined to believe that the rule of

lenity still has some force.” 890 F.3d at 1092 n.14 (Silberman, Garland, Edwards, JJ.).

As for the First Circuit, Judges Torruella and

Thompson wrote separately in Lewis to raise their

concern that reflexive Stinson deference carries “troubling implications for due process, checks and balances, and the rule of law.” 963 F.3d at 27-28 (Torruella & Thompson, JJ., concurring). And in other Auer

cases, the First Circuit has expressly prioritized lenity over deference. De Lima, 867 F.3d at 265.

So too in the Fifth Circuit. United States v. Moss,

872 F.3d 304, 308, 314 (5th Cir. 2017) (reaffirming circuit precedent that precludes Auer deference in criminal cases); see also United States v. Cantu, 423 F.

Supp. 3d 345, 352 (S.D. Tex. 2019) (“Applying the rule

of lenity, U.S.S.G. § 1B1.13 cmt. n.1(D) no longer describes an appropriate use of sentence-modification

provisions and is thus not part of the applicable policy

statement binding the Court.”).

On the anti-lenity side of the ledger sit the Second,

Eighth, and likely the Fourth, Ninth, and Eleventh

Circuits.

In Mendoza-Figueroa, the en banc Eighth Circuit

deferred to the Commission’s commentary over a dissent that called for the rule of lenity. 65 F.3d at 692,

696-98. And the Second Circuit did the same in Tabb,

949 F.3d at 89 n.8.

The Eleventh Circuit has “cast doubt” on whether

the rule of lenity applies to the interpretative commentary to the Guidelines. Cingari, 952 F.3d 1301,

15

1310-11 (quoting United States v. Watts, 896 F.3d

1245, 1255 (11th Cir. 2018)). And the Ninth Circuit’s

approach of searching beyond the Guidelines’ text to

add crimes to the Career Offender Guideline suggests

an anti-lenity approach. Crum, 934 F.3d at 966.

The Fourth has precedent prioritizing deference

over lenity in other contexts. See Yi v. Fed. Bureau of

Prisons, 412 F.3d 526, 535 (4th Cir. 2005) (“[D]eference trumps lenity when courts are called upon to resolve disputes about ambiguous statutory language.”)

(citation omitted).

And then there is the Tenth Circuit, which recently vacated a panel decision that refused to apply

lenity before deference; the court will rehear the issue

en banc. Aposhian v. Barr, 973 F.3d 1151 (10th Cir.),

vacating 958 F.3d 969, 982-82 (10th Cir. 2020).

This Court’s intervention is necessary to clarify

that lenity is one of the traditional tools of interpretation that Kisor instructed courts to apply before concluding a rule is genuinely ambiguous such that Stinson deference might be appropriate.

Only this Court can resolve the issue largely because this Court’s own past statements have added to

the confusion. In dictum, the Court has stated once

that, although it had applied lenity to “specific factual

disputes” regarding “a statute that contains criminal

sanctions,” the Court had “never suggested that the

rule of lenity should provide the standard for reviewing facial challenges to administrative regulations

whenever the governing statute authorizes criminal

enforcement.” Babbitt v. Sweet Home Chapter of

Cmts. for a Great Ore., 515 U.S. 687, 704 n.18 (1995).

Justice Scalia, joined by Justice Thomas, later described Babbitt’s footnote as a “drive-by ruling” that

“deserves little weight” because it “contradicts the

16

many cases before and since holding that, if a law has

both criminal and civil applications, the rule of lenity

governs its interpretation in both settings.” Whitman,

574 U.S. 1003 Scalia, J., statement respecting denial

of certiorari) (citing Leocal v. Ashcroft, 543 U.S. 1, 1112 n.8 (2004); Thompson/Ctr. Arms, 504 U.S. at 518

n.10). At least twice since Babbitt, the Court has

granted a petition that raised the issue of whether

lenity takes priority over deference but then disposed

of the case on other grounds. See Esquivel-Quintana,

137 S. Ct. at 1572; Barber v. Thomas, 560 U.S. 474,

488 (2010); see also Solid Waste Agency of N. Cook Cty.

v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 174 n.8

(2001) (declining to consider the rule of lenity’s application to the Clean Water Act because the regulation

at issue exceeded the agency’s statutory authority).

Now is the time to finally resolve the issue; “liberty

is at stake” for Mr. Tabb, as well as Mr. Broadway and

Mr. Lovato. Guedes, 140 S. Ct. at 790 (Gorsuch, J.,

statement regarding denial of certiorari) (announcing

that the Court is awaiting a case on the issue). Denying these pending petitions will signal to the lower

courts that they can continue to disregard the important lessons of Kisor.

II. THIS COURT SHOULD GRANT THE PETITION TO

NARROW THE SCOPE OF STINSON OR OVERTURN IT

Obligatory deference regimes like Stinson are antithetical to the independent judgment that Article III

requires, and they violate the Fifth Amendment’s Due

Process Clause by exhibiting bias toward one party.

As Judge Thapar explained in his Havis concurrence, deference to the Commission’s commentary

“both transfer[s] the judiciary’s power to say what the

law is to the Commission and deprive[s] the judiciary

17

of its ability to check the Commission’s exercise of

power.” Havis, 907 F.3d at 450-51 (Thapar, J.). Stinson also allows the Commission to make and interpret

the Guidelines. But “just as a pitcher cannot call his

own balls and strikes, an agency cannot trespass upon

the court’s province to ‘say what the law is.’” Id. at

450 (quoting Marbury, 5 U.S. at 137). “Such deference is found nowhere in the Constitution—the document to which judges take an oath.” Id. at 451-52.

A. Interpretive Deference Is Unconstitutional

1. Stinson Deference Is Inconsistent with

Judicial Independent & the Judicial

Office

Judicial independence has been a touchstone of legitimate governance at least since English judges resisted King James I’s insistence that “[t]he King being

the author of the Lawe is the interpreter of the Lawe.”

See Philip Hamburger, Law and Judicial Duty 14950, 223 (2008). The judges insisted that, although

they exercised the judicial power in the name of the

monarch, the power rested solely in the judges. Prohibition del Roy, 12 Co. Rep. 63, 65 (1608).

During the revolt against tyranny, the American

Declaration of Independence objected to judges “dependent on [King George III’s] will alone.” The Declaration of Independence, ¶ 3. The Founders then

cast their first substantive vote at the Constitutional

Convention of 1787 to create a government that separated power among three co-equal branches. See 1

Records of the Federal Convention of 1787, 30-31

(Max Farrand ed., Yale Univ. Press 1911). Separating governmental power preserves liberty, in part, because each branch jealously checks the other

18

branches’ attempts to shift the constitutional balance

of power.

No branch is more vital to protecting liberty from

factious politics than the judiciary. Our constitutional backstop, the independent judiciary ensures

that the political branches cannot encroach upon or

diminish constitutional liberties. Article III guards

the judiciary’s independence by adopting the common-law tradition of an independent judicial office

and by granting life tenure and undiminished salary.

U.S. CONST., ART. III, § 1. To hold the Article III judicial office, a judge swears an oath to the Constitution

and is duty-bound to exercise his or her office independently. See Law and Judicial Duty 507-12.

The judicial office carries with it a duty of independent judgment. See James Iredell, To the Public,

N.C. Gazette (Aug. 17, 1786) (describing the duty of

judges as “[t]he duty of the power”). Through the independent judicial office, the Founders ensured that

judges would not administer justice based on someone

else’s interpretation of the law. See 2 Records of the

Federal Convention of 1787, 79 (Nathaniel Gorham

explaining that “the Judges ought to carry into the exposition of the laws no prepossessions with regard to

them”); THE FEDERALIST No. 78 (Alexander Hamilton)

(“The interpretation of laws is the proper and peculiar

province of the courts.”). This obligation of independence is reflected in the opinions of the founding era’s

finest jurists. See, e.g., Georgia v. Brailsford, 2 U.S.

415, 416 (1793) (Iredell, J., dissenting) (“It is my misfortune to dissent … but I am bound to decide, according to the dictates of my own judgment.”); The Julia,

14 F. Cas. 27, 33 (C.C.D. Mass. 1813) (Story, J.) (“[M]y

duty requires that whatsoever may be its imperfections, my own judgment should be pronounced to the

19

parties.”); United States v. Burr, 25 F. Cas. 2, 15

(C.C.D. Va. 1807) (Marshall, J.) (“[W]hether [the

point] be conceded by others or not, it is the dictate of

my own judgment, and in the performance of my duty

I can know no other guide.”).

Judicial independence, as a duty and obligation,

persists today. This principle is so axiomatic, in fact,

that it seldom appears in legal argument; the mere

suggestion that a judge might breach his or her duty

of independent judgment is a scandalous insinuation.

But that is exactly what deference regimes like Stinson require: judicial dependence on a non-judicial entity’s interpretation of the law.2

Faithful application of Stinson requires judges to

abdicate the duty of their judicial office by forgoing

their independent judgment in favor of an agency’s legal interpretation. See Perez v. Mortgage Bankers

Ass’n, 572 U.S. 92, 110 (2015) (Scalia, J., concurring

in judgment) (deference requires courts “to ‘decide’

that the text means what the agency says”). This diminishes the judicial office and, with it, the structural

safeguards the Framers erected as a bulwark against

tyranny. Cf. Miller v. Johnson, 515 U.S. 900, 922-23

(1995) (holding that deference to the Department of

Justice’s statutory interpretation would impermissibly

“surrender[] to the Executive Branch [the Court’s]

role in enforcing the constitutional limits [at issue]”).

Even when Congress has tasked an agency with

promulgating binding rules or guidelines, it remains

the judiciary’s role to “say what the law is” in any case

2 Those judges who serve on the Commission are not acting

as judges but as part-time Commissioners, even if their expertise

as judges informs their decisions. See Havis, 907 F.3d at 451

(Thapar, J.).

20

or controversy about the meaning and application of

those agency-made provisions. Marbury, 5 U.S. at

177. The duty of independent judgment is the very office of an Article III judge; Stinson cannot lawfully require judges to abdicate this duty. Cf. Yarborough v.

Alvarado, 541 U.S. 652, 663-64 (2004) (discussing the

“substantial element of judgment” that federal judges

must exercise “when applying a broadly written rule

to a specific case”). The Commission’s opinion of how

to best interpret its guidelines deserves no more

weight than the heft of its persuasiveness. See, e.g.,

18 U.S.C. § 3553(b) (allowing but not requiring courts

to “consider” the “official commentary of the Sentencing Commission” when deciding whether to depart

from a guidelines range); cf. TetraTech, Inc. v. Wisc.

Dep’t of Revenue, 914 N.W.2d 21, 53 (Wisc. 2018)

(“‘‘Due weight’ is a matter of persuasion, not deference.”).

2. Stinson Violates Due Process

Institutionalizing Judicial Bias

by

Deference to commission commentary also jeopardizes the judicial impartiality that due process requires. Cf. Marshall v. Jerrico, Inc., 446 U.S. 238, 242

(1980); Com. Coatings Corp. v. Cont’l Cas. Co., 393

U.S. 145, 149 (1968) (explaining that judicial bodies

“not only must be unbiased but also must avoid even

the appearance of bias.”); Masterpiece Cake Shop, Ltd.

v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719,

1734 (2018) (Kagan, J., concurring) (agreeing the

Constitution forbids adjudicatory proceedings that

are “infected by … bias”).

Judicial bias need not be personal bias to violate

due process—it can also be institutional. In fact, institutionalized judicial bias is more pervasive, as it

21

systematically subjects parties across the entire judiciary to bias rather than only a party before a particular judge. Stinson institutionalizes bias by requiring

courts to “defer” to the government’s legal interpretation in violation of a defendant’s right to due process

of law. Cf. Philip Hamburger, Chevron Bias, 84 GEO.

WASH. L. REV. 1187 (2016). Rather than exercise their

own judgment about what the law is, judges under

Stinson defer as a matter of course to the judgment of

one of the litigants before them: the federal government. The government litigant wins merely by showing that its preferred interpretation of the commentary “is not plainly erroneous or inconsistent with” the

Guidelines. Stinson, 508 U.S. at 47; see also Martinez,

602 F.3d at 1173 (deferring so long as the commentary

“can be reconciled with the language of [the] guideline”). A judge cannot simply find the defendant’s

reading more plausible or think the government’s

reading is wrong—the government must be plainly

wrong.

Most judges recognize that personal bias requires

recusal. It is equally inappropriate for a judge to decide a case based on a deference regime that institutionalizes bias by requiring judges to favor the legal

interpretation of a government litigant. See In re

Murchison, 349 U.S. 133, 136 (1955) (reasoning that

the “stringent” due-process requirement of impartiality may require recusal by “judges who have no actual

bias and who would do their very best to weigh the

scales of justice equally between contending parties”).

No rationale can defend a practice that weights

the scales in favor of a government litigant—the most

powerful of parties—and commands systematic bias

in favor of the government’s preferred interpretations

of the Sentencing Guidelines. Government-litigant

22

bias doctrines like Stinson deny due process by favoring the government’s litigating position. Tumey v.

Ohio, 273 U.S. 510, 532 (1927) (“Every procedure”

that might lead a judge “not to hold the balance nice,

clear, and true between the state and the accused denies the latter due process of law.”).

B. Deference to Commission Commentary Is

Uniquely Inappropriate

Keeping in mind that reflexive agency deference is

never appropriate and is particularly injurious in

cases with criminal consequences, there is yet another reason that the lower courts’ deference to Application Note 1 warrants this Court’s review: The Commission cannot expand the Guidelines through commentary rather than amendment.

The Commission is constitutional only because (1)

Congress reviews amendments to the Guidelines before they take effect; and (2) the Commission must

promulgate its amendments through notice-and-comment rulemaking. Mistretta, 488 U.S. at 393-94.

Courts cannot, as a matter convenience or expediency, co-sign the Commission’s expansion of the

Guidelines through commentary. Under Mistretta,

any text the Commission issues without notice-andcomment rulemaking or congressional review cannot

bind the Judiciary without offending the separation of

powers. The lower courts’ disregard of the strict limitations outlined in Mistretta undermines the Commission’s “unusual” special place in our constitutional

system and creates something untenable.

It is time for this Court to reconsider Stinson, reject the “deference” that compromises the judiciary,

and allow conscientious judges to uphold their constitutional oath. Deference has no role in criminal

23

sentencing, where the government can deprive a defendant of liberty only if all three branches agree separately and independently that the sanction is justified.

CONCLUSION

This Court should grant Mr. Tabb’s petition along

with the petitions in Broadway, No. 20-___, and Lovato,

20-6436, which present substantially similar issues.

Respectfully submitted,

December 16, 2020

MARK CHENOWETH

CALEB KRUCKENBERG

JARED MCCLAIN

Counsel of Record

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

Jared.McClain@NCLA.

onmicrosoft.com

DUE PROCESS INSTITUTE

SHANA-TARA O’TOOLE

700 Pennsylvania Ave. SE

#560

Washington, DC 20003

(202) 558-6683

Shana@idueprocess.org