Amicus Curiae Brief — Daniel Lovato, Petitioner v. United States

No. 20-6436

IN THE

Supreme Court of the United States

_____________

DANIEL LOVATO,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent.

_____________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

_____________

AMICUS CURIAE BRIEF OF

DUE PROCESS INSTITUTE & THE NEW CIVIL

LIBERTIES ALLIANCE

IN SUPPORT OF PETITIONER

_____________

MARK CHENOWETH

CALEB KRUCKENBERG

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

Caleb.Kruckenberg@NCLA.

onmicrosoft.com

DECEMBER 22, 2020

SHANA-TARA O’TOOLE

Counsel of Record

DUE PROCESS INSTITUTE

700 Pennsylvania Ave. SE

#560

Washington, DC 20003

(202) 558-6683

Shana@idueprocess.org

i

QUESTION PRESENTED

Due Process Institute and the New Civil Liberties

Alliance, as amici curiae, will address the following

question necessary to resolving the circuit split raised

in Mr. Lovato’s petition:

(1) Whether courts may defer to Sentencing Commission commentary without first determining that

the underlying Guideline is genuinely ambiguous?

ii

TABLE OF CONTENTS

QUESTION PRESENTED .................................................i

TABLE OF AUTHORITIES ............................................ iii

INTEREST OF AMICUS CURIAE ..................................1

SUMMARY OF ARGUMENT ...........................................2

ARGUMENT ........................................................................4

I. AFTER KISOR, STINSON DEFERENCE

CAN ONLY APPLY TO AMBIGUOUS

GUIDELINE PROVISIONS, IMPLICATING

THE RULE OF LENITY ..............................................4

II. THE RULE OF LENITY, NOT DEFERENCE,

MUST PREVAIL ...........................................................6

A. Stinson Did Not Consider the Rule of Lenity

....................................................................................6

B. Three Core Constitutional Principles

Compel Lenity ..........................................................6

C. Lenity Is a Traditional Tool of Interpretation that Applies Before Deference .................... 10

D. Lower Courts Are Evenly Split on Whether

to Prioritize Lenity over Stinson Deference ..... 12

CONCLUSION ................................................................. 16

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) ...................................................... 14, 15

Auer v. Robbins,

519 U.S. 452 (1997) ......................................... 12, 13, 14

Babitt v. Sweet Home Chapter of Cmts.

for a Great Ore.,

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

Barber v. Thomas,

560 U.S. 474 (2010) ..................................................... 15

Bifulco v. United States,

447 U.S. 381 (1980) ........................................................7

Bowles v. Seminole Rock & Sand Co.,

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

Bray v. Atalanta,

4 F. Cas. 37 (D.S.C. 1794) ..............................................7

Carter v. Welles-Bowen Realty, Inc.,

iv

736 F.3d 722 (6th Cir. 2013) ...................................... 10

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc.,

467 U.S. 837 (1984) ........................................................6

Christensen v. Harris Cty.,

529 U.S. 576 (2000) ................................................ 9, 10

De Lima v. Sessions,

867 F.3d 260 (1st Cir. 2017) ................................. 10, 13

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, 15

Guedes v. Bureau of Alcohol, Tobacco, Firearms

& Explosives,

140 S. Ct. 789 (2020) ............................................... 6, 16

Kisor v. Wilkie,

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

Leocal v. Ashcroft,

543 U.S. 1 (2004).......................................................... 15

Liparota v. United States,

471 U.S. 419 (1985) ........................................................8

M. Kraus & Bros. v. United States,

327 U.S. 614 (1946) ................................................... 7, 8

v

McBoyle v. United States,

283 U.S. 25 (1931) ..........................................................8

Mitchell v. Wisconsin,

139 S. Ct. 2525 (2019) ....................................................1

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

Solid Waste Agency of N. Cook Cty. v.

U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) ............................................... 15, 16

Stinson v. United States,

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

Timbs v. Indiana,

139 S. Ct. 682 (2019) ......................................................1

United States v. Bass,

404 U.S. 336 (1971) ............................................. 8, 9, 12

United States v. Booker,

543 U.S. 220 (2005) ................................................... 8, 9

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) .............................. 3, 14

United States v. Crum,

vi

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

cert. denied, 140 S. Ct. 2629 (2020) ........................... 14

United States v. Davis,

139 S. Ct. 2319 (2019) ................................................. 11

United States v. Faison,

2020 WL 815699 (D. Md. Feb. 18, 2020) .....................7

United States v. Gay,

240 F.3d 1222 (10th Cir. 2001) ................................ 3, 5

United States v. Havis,

907 F.3d 439 (6th Cir. 2018) ............................ 6, 12, 13

United States v. Haymond,

139 S. Ct. 2369 (2019) ....................................................1

United States v. Lazaro-Guadarrama,

71 F.3d. 1419 (8th Cir. 1995) ........................................5

United States v. Lewis,

963 F.3d 16 (1st Cir. 2020) ......................................... 13

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).................................... 2, 14

United States v. Moss,

872 F.3d 304 (5th Cir. 2017) ................................ 13, 14

United States v. Nasir,

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

vii

United States v. Santos,

553 U.S. 507 (2008) ................................................... 7, 9

United States v. Simpson,

319 F.3d 81 (2d Cir. 2002) .............................................5

United States v. Tabb,

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

No. 20-579 ..................................................................... 14

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

504 U.S. 505 (1992) ............................................... 10, 15

United States v. Watts,

896 F.3d 1245 (11th Cir. 2018)) ................................. 14

United States v. Wiltberger,

18 U.S. (1 Wheat.) 76 (1820) ............................. 3, 7, 12

United States v. Winstead,

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

Webster v. Fall,

266 U.S. 507 (1925) ........................................................6

Whitman v. United States,

135 S. Ct. 352 (2014) ............................................... 3, 15

Yi v. Fed. Bureau of Prisons,

412 F.3d 526 (4th Cir. 2005) ...................................... 14

OTHER AUTHORITIES

Broadway v. United States,

No. 20-___ (filed Dec. 16, 2020) .......................... 4, 5, 16

viii

Livingston Hall, Strict or Liberal Construction of

Penal Statutes, 48 HARV. L. REV 428 (1935)...............8

Tabb v. United States,

No. 20-579 (filed Oct. 28, 2020).......................... 4, 5, 16

CONSTITUTIONAL PROVISIONS

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

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 ............................................................... 13

1

INTEREST OF AMICUS CURIAE1

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.

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.

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.

Pursuant to Rule 37, both parties were timely notified and

have consented to the filing of this brief. No counsel for a party

authored any part of this brief. No one other than the amicus

curiae, their members, or their counsel financed the preparation

or submission of this brief.

1

2

SUMMARY OF ARGUMENT

The imposition of additional years of incarceration

cannot be premised on resolving uncertainty in favor of

the prosecution. To do so violates one of the most fundamental principles of criminal law—the rule of lenity. The

Constitution abhors punishment arising only from

guesswork. This Court’s decision in Stinson v. United

States, 508 U.S. 36 (1993), however, continues to be misused by multiple courts of appeals to routinely increase

terms of incarceration—often dramatically—out of binding deference to the Sentencing Commission’s mere commentary about unclear sentencing enhancements.

Petitioner convincingly argues that the courts of appeals’ “reflexive deference” to the Sentencing Commission’s commentary “fundamentally disregards this

Court’s clear directive in Kisor [v. Wilkie, 139 S.Ct. 2400

(2019)].” (Pet. at 17.) As the Court recognized in Kisor,

courts must not defer “reflexive[ly]” to agencies’ regulatory interpretations, without first conducting their

own exhaustive textual analysis. See ibid. Amici join

in the concern that the Tenth Circuit, along with others,

have given “nearly dispositive weight” to the Commission’s commentary over “the Guidelines’ plain text” without engaging in the required ambiguity analysis. See

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.”).

3

Amici write separately, however, to stress the need

for this Court’s guidance to resolve the “broader problem”

that arises once the Tenth Circuit, and six other 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 agency, and only

when a true ambiguity exists. 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

when ambiguous laws are in play. United States v.

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

Tenth Circuit has joined its sister circuits in holding

that the “rule of lenity requires courts to interpret ambiguous statutes, including the Sentencing Guidelines, in favor of criminal defendants.” United States

v. Gay, 240 F.3d 1222, 1232 (10th Cir. 2001). The

courts of appeals, however, are starkly divided on

what comes next—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

United States v. Cingari, 952 F.3d 1301, 1310-11

(11th Cir. 2020) (“cast[ing] doubt” on whether lenity

applies before Stinson deference).

This circuit split results from this Court’s lack of

clarity on the issue. See, e.g., Whitman v. United

States, 135 S. Ct. 352 (2014) (Scalia J., joined by

Thomas, J., statement respecting denial of certiorari)

(collecting cases to demonstrate that this Court’s antilenity 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”).

4

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

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

2020); and Tabb v. United States, No. 20-579 (filed

Oct. 28, 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 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.

ARGUMENT

In order to reconcile Kisor with Stinson, this Court

must finally resolve a long-simmering conflict between

the basic premises underlying the rule of lenity and the

concept of agency deference. When these concepts collide, respect for due process, the separation of powers,

and our nation’s long preference for liberty, compels lenity, not harshness.

I. AFTER KISOR, STINSON DEFERENCE CAN

ONLY APPLY TO AMBIGUOUS GUIDELINE

PROVISIONS, IMPLICATING THE RULE OF

LENITY

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).

5

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. “If uncertainty

does not exist, there is no plausible reason for deference.”

Id.

As Petitioner notes, the Tenth Circuit skipped that

critical step in the panel decision. (Pet. at 18.) So did the

Second Circuit in Mr. Tabb’s case, as well as the Eighth

Circuit in Mr. Broadway’s, both of which are also pending before this Court.

But those same circuit courts have all recognized that

the rule of lenity applies to an ambiguous guideline provision. See United States v. Simpson, 319 F.3d 81, 86 (2d

Cir. 2002) (“We join several of our sister circuits in applying the rule of lenity to the Guidelines.”); Gay, 240 F.3d

at 1232 (“The rule of lenity requires courts to interpret

ambiguous statutes, including the Sentencing Guidelines, in favor of criminal defendants.”); United States v.

Lazaro-Guadarrama, 71 F.3d 1419, 1421 (8th Cir. 1995)

(applying the rule of lenity to the Guidelines and finding

that the “[t]he rule of lenity states that a court cannot

interpret a federal criminal statute so as to increase the

penalty that it places on an individual when such an interpretation can be based on no more than a guess as to

what Congress intended.”) (internal quotation marks

and citation omitted).

If this Court enforces Kisor’s mandate to grant deference only in instances of genuine ambiguity, then there

necessarily arises an intractable conflict between the

rule of lenity and agency deference. Deference, born of

judicial respect, must give way to lenity, a rule of constitutional necessity.

6

II. THE RULE OF LENITY, NOT DEFERENCE,

MUST PREVAIL

A. Stinson Did Not Consider 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 deference receives priority” because

the statute at issue was unambiguous); see also 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. Lovato, so “alarm

bells should be going off.” United States v. Havis, 907

F.3d 439, 450 (6th Cir. 2018) (Thapar, J., concurring).

B. Three Core Constitutional Principles Compel Lenity.

“[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

7

(Bibas, J.). There is no greater liberty interest in life

than to be free from a cage. See United States v. Faison, 2020 WL 815699, at *1 (D. Md. Feb. 18, 2020)

(“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

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)

8

(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, 74951 (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)).

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 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).

9

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[.]”

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. Booker, 543 U.S. at 258

(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

10

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, 517

(1992); 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.” Carter v. WellesBowen 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.

11

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.) (“It has also been observed that an act of Congress ought never to be construed to violate the law of

nations if any other possible construction remains[.]”).

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

12

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

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 about what

role, if any, Kisor (née Auer) deference plays in interpreting criminal penalties. That split extends to Stinson cases.

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

13

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 United States v. Winstead

noted its belief 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 1082, 1092 n.14 (D.C. Cir. 2018) (Silberman,

Garland, Edwards, JJ.).

As for the First Circuit, Judges Torruella and

Thompson wrote separately in United States v. 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 16, 27-28

(1st Cir. 2020) (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

14

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

United States v. Tabb, 949 F.3d 81, 89 n.8 (2d Cir.

2020), cert. pending, No. 20-579 (filed Oct. 28, 2020).

The Eleventh Circuit has “cast doubt” on whether

the rule of lenity applies to the interpretative commentary to the Guidelines. Cingari, 952 F.3d at 131011 (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. United States v. Crum, 934 F.3d

963, 966 (9th Cir. 2019), cert. denied, 140 S. Ct. 2629

(2020).

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, in the

decision below adhered to its pre-Kisor precedent

without even discussing the lurking constitutional

15

questions, yet 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

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,

135 S. Ct. at 353-54 (Scalia, J., statement respecting

denial of certiorari) (citing Leocal v. Ashcroft, 543 U.S.

1, 11-12 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.

16

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. Lovato, as well as Mr. Broadway

and Mr. Tabb. 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.

CONCLUSION

This Court should grant Mr. Lovato’s petition along

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

20-579, which present substantially similar issues.

December 22, 2020

Respectfully submitted,

SHANA-TARA O’TOOLE

DUE PROCESS INSTITUTE

Counsel of Record

700 Penn. Ave. SE #560

Washington, DC 20003

(202) 558-6683

Shana@idueprocess.org

MARK CHENOWETH

CALEB KRUCKENBERG

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

Caleb.Kruckenberg@NCLA.

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