Amicus Curiae Brief — Jayren Jakar Wynn, Petitioner v. United States

No. 21-5714

In The

Supreme Court of the United States

____________________

JAYREN JAKAR WYNN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

____________________

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

____________________

OLIVER J. DUNFORD

Counsel of Record

CALEB KRUCKENBERG

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

ODunford@pacificlegal.org

CKruckenberg@pacificlegal.org

Counsel for Amicus Curiae

Pacific Legal Foundation

i

TABLE OF CONTENTS

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

IDENTITY AND INTEREST OF AMICUS

CURIAE ...................................................................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 2

ARGUMENT ............................................................... 3

I. REQUIRING DEFERENCE TO THE

COMMISSION ABSENT AMBIGUITY

VIOLATES THE SEPARATION OF

POWERS ............................................................ 3

A. Congress Deliberately Limited the

Commission’s Authority to Amend the

Guidelines, Which Avoids Separation of

Powers Concerns .......................................... 3

B. Deference to Any Agency Relies on

Congressional Delegation of Legislative

Power ............................................................ 5

C. The Approach Taken by the Second Circuit,

and Six Others, Violates the Separation of

Powers .......................................................... 7

II. ALL JUDICIAL DEFERENCE TO THE

COMMISSION THREATENS

CONSTITUTIONAL PROTECTIONS

ENSHRINED IN THE RULE OF LENITY...... 9

ii

III. ONLY THIS COURT CAN REMEDY THE

GRAVE INJUSTICES PREVAILING IN

SEVEN CIRCUITS.......................................... 13

CONCLUSION.......................................................... 14

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abramski v. United States,

573 U.S. 169 (2014) ............................................. 12

Auer v. Robbins,

519 U.S. 452 (1997) ......................................... 6, 10

Bifulco v. United States,

447 U.S. 381 (1980) ............................................. 11

Collins v. Yellen,

141 S. Ct. 1761 (2021) ......................................... 14

Guedes v. Bureau of Alcohol, Tobacco,

Firearms & Explosives,

140 S. Ct. 789 (2020) ........................................... 10

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ............................... 6, 7, 8, 9

Liparota v. United States,

471 U.S. 419 (1985) ............................................. 12

Lucia v. S.E.C.,

138 S. Ct. 2044 (2018) ........................................... 1

McBoyle v. United States,

283 U.S. 25 (1931) ............................................... 11

Mistretta v. United States,

488 U.S. 361 (1989) ....................................... 4, 5, 8

iv

Rapanos v. United States,

547 U.S. 715 (2006) ............................................... 1

Sackett v. E.P.A.,

566 U.S. 120 (2012) ............................................... 1

Stinson v. United States,

508 U.S. 36 (1993) ....................................... 4, 6, 10

U.S. Army Corps of Eng’rs v. Hawkes

Co.,

570 U.S. 590 (2016) ............................................... 1

United States v. Adams,

934 F.3d 720 (7th Cir. 2019) ........................... 8, 13

United States v. Apel,

571 U.S. 359 (2014) ............................................. 12

United States v. Bass,

404 U.S. 336 (1971) ............................................. 12

United States v. Broadway,

815 F. App’x 95 (8th Cir. 2020)

(unpublished) ............................................... 8, 9, 13

United States v. Cingari,

952 F.3d 1301 (11th Cir. 2020) ....................... 8, 13

United States v. Crum,

934 F.3d 963 (9th Cir. 2019) ....................... 8, 9, 13

United States v. Havis,

907 F.3d 439 (6th Cir. 2018) ........................... 8, 10

United States v. Havis,

927 F.3d 382 (6th Cir. 2019) ................... 5, 8, 9, 10

v

United States v. Lewis,

963 F.3d 16 (1st Cir. 2020) .......................... 8, 9, 13

United States v. Lovato,

950 F.3d 1337 (10th Cir. 2020) ........................... 13

United States v. Lovelace,

794 F. App’x 793 (10th Cir. 2020) ................... 8, 13

United States v. Nasir,

982 F.3d 144 (3d Cir. 2020) ............................... 7, 8

United States v. Santos,

553 U.S. 507 (2008) ............................................. 11

United States v. Tabb,

949 F.3d 81 (2d Cir. 2020) ............................... 9, 13

United States v. Wiltberger,

18 U.S. 76 (1820) ................................................. 10

United States v. Wynn,

845 F. App’x 63 (2d Cir. 2021) ........................ 7, 13

Statutes

28 U.S.C. § 991(a) ....................................................... 3

28 U.S.C. § 991 (b)(1) .................................................. 3

28 U.S.C. § 994(x) ....................................................... 4

U.S.S.G. § 1B1.7...................................................... 4, 5

vi

Other Authorities

Nate Raymond, U.S. Sentencing Panel’s

Last Member Urges Biden to Revive

Commission, Reuters (Nov. 11, 2021) ................. 14

U.S. Sentencing Commission, Overview

of Federal Criminal Cases FY 2020

(Apr. 2021) ........................................................... 14

1

IDENTITY AND

INTEREST OF AMICUS CURIAE 1

Founded in 1973, Pacific Legal Foundation is a

nonprofit,

tax-exempt,

California

corporation

established for the purpose of litigating matters

affecting the public interest. PLF provides a voice in

the courts for Americans who believe in limited

constitutional government, private property rights,

and individual freedom.

PLF is the most experienced public-interest

legal organization defending the constitutional

principle of separation of powers in the arena of

administrative law. PLF’s attorneys have participated

as lead counsel or counsel for amici in several cases

involving the role of the Judicial Branch as an

independent check on the Executive and Legislative

branches under the Constitution’s Separation of

Powers. See, e.g., Lucia v. S.E.C., 138 S. Ct. 2044

(2018) (SEC administrative-law judge is “officer of the

United States” under the Appointments Clause); U.S.

Army Corps of Eng’rs v. Hawkes Co., 570 U.S. 590,

(2016) (judicial review of agency interpretation of

Clean Water Act); Sackett v. E.P.A., 566 U.S. 120

(2012) (same); Rapanos v. United States, 547 U.S. 715

1 After timely notice was given, counsel for all parties have

consented to the filing of this brief. Pursuant to Rule 37.6,

Amicus Curiae affirms that no counsel for any party authored

this brief in whole or in part, and no counsel or party made a

monetary contribution intended to fund the preparation or

submission of this brief. No person other than Amicus Curiae, its

members, or its counsel made a monetary contribution to its

preparation or submission.

2

(2006) (agency regulations defining “waters of the

United States”).

This case implicates significant concerns about

the proper role an administrative agency may occupy

in criminal sentencing. PLF, therefore, offers a

discussion of the relevant constitutional principles

and the dire consequences of the prevailing approach

taken by the lower courts.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The U.S. Sentencing Commission, an

administrative agency, may not create ad hoc

sentencing enhancements outside the route

specifically set out by Congress, nor may it bind

federal court interpretations of existing guideline

provisions merely from the force of its own will.

Congress did not intend for the Commission to exert

such absolute power over sentencing enhancements

but instead guaranteed congressional oversight into

any amendments to the guidelines. By preserving

congressional control, the Sentencing Reform Act

ensured that the Commission could exercise neither

legislative nor judicial prerogatives over criminal

sentencing decisions.

Despite these fundamental principles already

set down by this Court, the lower courts have distorted

the Commission’s role, relinquished judicial

authority, and threatened congressional control over

the guidelines. This Court should grant the petition

and hold that the Commission may not enlarge or

amend its guidelines through informal commentary

and that its commentary serves only as the

3

Commission’s nonbinding views of the guidelines

themselves.

Petitioner, Jayren Jakar Wynn, convincingly

argues that the sentencing enhancement applied to

him was an incorrect reading of the guideline

provision that had been approved by Congress. PLF

writes separately to stress the important

constitutional implications of the approach taken by

the Second Circuit, and, indeed, the majority of

circuits. If the Commission can bind a federal court

with informal commentary, even without attempting

to resolve a regulatory ambiguity, it can exercise

legislative power specifically withheld from it and

simultaneously intrude on the judicial prerogative to

interpret the law. Instead of allowing the Commission

to intrude on constitutionally separate functions of

governance, principles of due process and respect for

constitutional order require courts to abandon all

deference to the Commission in favor of the rule of

lenity.

ARGUMENT

I.

REQUIRING DEFERENCE TO THE

COMMISSION ABSENT AMBIGUITY

VIOLATES THE SEPARATION OF POWERS

A. Congress Deliberately Limited the

Commission’s Authority to Amend

the Guidelines, Which Avoids

Separation of Powers Concerns

When Congress created the Commission, it

explicitly delegated certain authority over federal

sentencing. A product of the Sentencing Reform Act,

4

the Commission was created to “establish sentencing

policies and practices for the Federal Criminal justice

system.” 28 U.S.C. § 991(a), (b)(1). Seated nominally

in the Judicial Branch while exercising quasilegislative power, the Commission is “an unusual

hybrid in structure and authority.” Mistretta v. United

States, 488 U.S. 361, 412 (1989).

Section 994(a) of the Act directs the

Commission to take two types of action:

(1) promulgating the guidelines and (2) issuing

“general policy statements regarding application of

the guidelines or any other aspect of sentencing or

sentence implementation.” The Commission must

promulgate its guidelines pursuant to notice-andcomment rulemaking. 28 U.S.C. § 994(x). And the

Commission must submit any amendments or

modifications of the guidelines pursuant to § 994(a) to

Congress for a mandatory review period of at least six

months, during which Congress may modify or reject

the Commission’s amendments or modifications. Id.

§ 994(p).

There is, however, a third category of action the

Commission may take. The Act—by implication

rather than express mandate—permits the

Commission to publish commentary about its

guidelines. See Stinson v. United States, 508 U.S. 36,

41 (1993) (citing 18 U.S.C. § 3553(b)). According to the

Commission, the purpose of its commentary is to

(1) explain or interpret the guidelines; (2) suggest

circumstances when courts should depart from the

guidelines; and (3) provide background information,

such as what factors the Commission considered.

U.S.S.G. § 1B1.7. The Commission characterizes its

5

commentary as having the same legal “force of policy

statements” and says only that a court’s failure to

follow the commentary “could constitute an incorrect

application of the guidelines, subjecting the sentence

to possible reversal on appeal.” U.S.S.G. § 1B1.7,

comment. But the commentary—unlike the

guidelines—is not expressly authorized by statute,

not issued following notice-and-comment rulemaking,

and not subject to congressional review.

Because of its anomalous presence in our

constitutional system, the Commission has long

raised concerns that it might be exercising powers

held exclusively by other branches. Nevertheless, this

Court upheld the Commission’s continued existence

based, in part, on two limitations on the Commission’s

power: (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. Because “the Commission is fully

accountable to Congress,” these limits prevented the

Commission from exercising “the power of judging

joined with the legislative.” Id. at 394 (quoting The

Federalist No. 47 (James Madison)). “These two

constraints—congressional review and notice and

comment—stand to safeguard the Commission from

uniting legislative and judicial authority in violation

of the separation of powers.” United States v. Havis,

927 F.3d 382, 385-86 (6th Cir. 2019) (en banc) (“Havis

II”).

B. Deference to Any Agency Relies on

Congressional Delegation of

Legislative Power

6

Whereas

Congress

explicitly

delegated

authority to the Commission to issue the guidelines,

administrative deference to the Commission involves

a different, implicit, delegation of power. Judicial

deference to administrative interpretations of

regulations is “rooted in a presumption about

congressional intent—a presumption that Congress

would generally want the agency to play the primary

role in resolving regulatory ambiguities.” Kisor v.

Wilkie, 139 S. Ct. 2400, 2412 (2019). It survives

constitutional scrutiny only because Congress has

implicitly directed an agency, not the judiciary, to

“fill[] regulatory gaps” left by ambiguous regulatory

text. Id. at 2413.

This Court has also concluded that the “express

congressional delegation of authority for rulemaking”

that allows the Commission to “promulgate[] the

guidelines” also allows it to issue binding commentary

“to assist in the interpretation and application of those

rules,” to which a court must defer. Stinson, 508 U.S.

at 44-45 (citing Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410, 414 (1945)). To be sure, this Court also

suggested in Stinson that deference to the

Commission was “not the product of delegated

authority for rulemaking” that would depend on an

ambiguity. Id. at 44. But in Kisor, this Court

repudiated the “mixed messages” found in Stinson

and similar decisions, and stressed that “Congress

intended for courts to defer to agencies when they

interpret their own ambiguous rules.” 139 S. Ct. at

2414 (emphasis added). 2 “If uncertainty does not exist,

This Court even cataloged Stinson as part of the “legion”

deference cases issued before Auer v. Robbins, 519 U.S. 452

2

7

there is no plausible reason for deference. The

regulation then just means what it means—and the

court must give it effect, as the court would any law.”

Id. 2415. Otherwise, deference would “permit the

agency, under the guise of interpreting a regulation,

to create de facto a new regulation.” Id. (quotation

omitted).

C. The Approach Taken by the Second

Circuit, and Six Others, Violates the

Separation of Powers

The panel below recognized that Application

Note 1 “expand[s] the definition of ‘controlled

substance offense’ to include aiding and abetting,

conspiring, and attempting to commit such offenses.”

United States v. Wynn, 845 F. App’x 63, 66 (2d Cir.

2021) (unpublished, citations omitted). This was

despite the lack of any ambiguity in the guideline

provision, and despite this Court’s admonitions in

Kisor. Id. The lower court thus concluded that the

commentary was binding on the courts, and thus the

district court had been required to calculate Wynn’s

sentence with the enhancement. Id.

The Second Circuit’s approach impermissibly

consolidates both the lawmaking and judicial function

in the Commission, doubly threatening the separation

of powers. As the en banc Third Circuit recognized,

courts must reform their practice of granting

“uncritical and broad deference to agency

interpretations” in order to “protect[] the separation of

powers.” United States v. Nasir, 982 F.3d 144, 158-60

(1997), that had applied “reflexive” deference that was a

“caricature” of the doctrine. Id. at 2411 n.3, 2412.

8

(3d Cir. 2020) (en banc) (“Nasir I”), vacated in part on

other grounds by --- S. Ct. ----, 2021 WL 4507560

(2021), and reinstated by --- F.4th ----, 2021 WL

5173485, at *8 (3d Cir. Nov. 8, 2021) (en banc) (“Nasir

II”). Indeed, “[i]f we accept that the commentary can

do more than interpret the guidelines, that it can add

to their scope, we allow circumvention of the checks

Congress put on the Sentencing Commission, a body

that exercises considerable authority in setting rules

that can deprive citizens of their liberty.” Nasir I, 982

F.3d at 159. “If the Commission can add to or amend

the Guidelines solely through commentary, then it

possesses a great deal more legislative power than

Mistretta envisioned. This means that in order to keep

the Sentencing Commission in its proper

constitutional position—whatever that is exactly—

courts must keep Guidelines text and Guidelines

commentary, which are two different vehicles, in their

respective lanes.” United States v. Havis, 907 F.3d

439, 443 (6th Cir. 2018) (“Havis I”) (Thapar, J.,

concurring). Thus, only by giving commentary “no

independent legal force” can a court preserve the

separation of powers. Havis II, 927 F.3d at 386. The

Second Circuit, however, has blown past all of these

safeguards, and empowered the Commission to

modify the guidelines and bind the courts at will.

Importantly, the Second Circuit is not alone in

this unconstitutional approach. Even after Kisor the

First, Seventh, Eighth, Ninth, Tenth, and Eleventh

Circuits all read Commission commentary as binding

on federal courts, even when it expands the guidelines

beyond the text approved by Congress and even

without textual ambiguity. See, e.g., United States v.

Lewis, 963 F.3d 16, 24 (1st Cir. 2020); United States v.

9

Cingari, 952 F.3d 1301, 1308 (11th Cir. 2020); United

States v. Broadway, 815 F. App’x 95, 96 (8th Cir. 2020)

(unpublished); United States v. Lovelace, 794 F. App’x

793, 795 (10th Cir. 2020) (unpublished); United States

v. Adams, 934 F.3d 720, 729 (7th Cir. 2019); United

States v. Crum, 934 F.3d 963, 966 (9th Cir. 2019). This

was despite the recognition by many of those courts

that this approach was inconsistent with Kisor. See,

e.g., Lewis, 963 F.3d at 27-28 (Torruella, J.,

concurring) (writing for two judges to note their

“discomfort with the practical effect” of the First

Circuit’s precedent, which they believe “raises

troubling implications for due process, checks and

balances, and the rule of law”); United States v. Tabb,

949 F.3d 81, 97 (2d Cir. 2020) (explaining that Havis

is “of no moment here, because we, acting as a three

judge panel, are not at liberty to revisit” circuit

precedent); Broadway, 815 F. App’x at 96 n.2 (“We are

not in a position to overrule [precedent], as Broadway

urges us to do, even if there have been some major

developments since 1995.”); Crum, 934 F.3d at 966 (“If

we were free to do so, we would follow the Sixth and

D.C. Circuits’ lead” because “the commentary

improperly expands the definition of ‘controlled

substance offense’ to include other offenses not listed

in the text of the guideline.”). Most people facing

federal sentencing therefore also find themselves

before courts that have outsourced judicial

independence

and

undermined

congressional

prerogatives in favor of an unlawful caricature of the

Commission.

II.

ALL JUDICIAL DEFERENCE TO THE

COMMISSION THREATENS

10

CONSTITUTIONAL PROTECTIONS

ENSHRINED IN THE RULE OF LENITY

Another constitutional error lurks below the

surface of this case, and this Court should also grant

review to finally make clear that deference to agency

interpretation can never be acceptable when it

increases criminal punishment. See Nasir II, 2021 WL

5173485, at *9 (Bibas, J., concurring) (observing that

the “narrow scope” of the court’s ruling on ambiguity

“hints at a broader problem” with Stinson). “[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). But the

Second Circuit, along with six others, reflexively

applies deference as a means of increasing criminal

punishment. “Were this a civil case,” the separation of

powers concerns discussed above “would merit close

attention. But as this is a criminal case and applying

Auer would extend [Wynn’s] time in prison, alarm

bells should be going off. The whole point of separating

the federal government’s powers in the first place was

to protect individual liberty.” See Havis I, 907 F.3d at

450 (Thapar, J., concurring).

“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 II, 2021 WL

5173485, at *10 (Bibas, J., concurring). “The

Commission thus exercises a sizable piece ‘of the

ultimate governmental power, short of capital

punishment’—the power to take away someone’s

liberty.” Havis II, 927 F.3d at 385 (quoting United

11

States v. Winstead, 890 F.3d 1082, 1092 (D.C. Cir.

2018)).

The rule of lenity is a vital means of limiting

this “ultimate governmental power.” Id. The rule is a

tool of construction “perhaps not much less old than

construction itself.” United States v. Wiltberger, 18

U.S. 76, 95 (1820). In simple terms, “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

during sentencing, not merely to determining whether

the defendant’s conduct is criminal in the first place.

See 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.”). Lenity applies with equal force to the

guidelines, which “exert a law-like gravitational pull

on sentences.” Nasir II, 2021 WL 5173485, at *11

(Bibas, J., concurring) (citing United States v. Booker,

543 U.S. 220, 265 (2005)).

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 *10. 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

12

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,” lenity

“embodies ‘the instinctive distaste[] against men

languishing in prison unless the lawmaker has clearly

said they should.’” Nasir II, 2021 WL 5173485, at *10

(Bibas, J., concurring) (quoting Bass, 404 U.S. at 347

(citation omitted)). By promoting liberty, lenity “fits

with one of the core purposes of our Constitution, to

‘secure the Blessings of Liberty’ for all[.]” Id. (quoting

U.S. Const. pmbl.).

But deferring to the Commission and erring on

the side of more time in prison wreaks havoc with

fundamental limits on when the government can

exercise its ultimate power. “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); see also United States v. Apel, 571 U.S.

359, 369 (2014) (“[W]e have never held that the

Government’s reading of a criminal statute is entitled

to any deference.”). And if a guideline enhancement is

truly uncertain, then a court cannot look to the

Commission for an answer—the answer lies in lenity.

13

The decision below, and the decisions of six other

circuits, have turned this baseline constitutional

value upside down.

III.

ONLY THIS COURT CAN REMEDY THE

GRAVE INJUSTICES PREVAILING IN

SEVEN CIRCUITS

This is hardly the first petition presenting

these critical issues concerning this very same

guideline provision. Last term, for instance, this Court

considered and ultimately denied petitions from

multiple circuits raising identical concerns. See Tabb,

949 F.3d 81, cert. denied 141 S. Ct. 2793 (2021);

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

2020), cert. denied, 141 S. Ct. 2814 (2021); Broadway,

815 F. App’x 95, cert. denied, 141 S. Ct. 2792 (2021).

But far from having resolved itself through

percolation in the lower courts, the problem has only

festered, and countless people have been unlawfully

sentenced to years in prison. Seven Circuits continue,

almost defiantly, to insist on the supremacy of the

Commission in all things. See, e.g., Lewis, 963 F.3d at

24; Cingari, 952 F.3d at 1308; Wynn, 845 F. App’x at

66; Broadway, 815 F. App’x at 96; Lovelace, 794 F.

App’x at 795; Adams, 934 F.3d at 729; Crum, 934 F.3d

at 966.

Indeed, Wynn is one of many who have been

unlawfully

punished.

Wynn’s

sentence

was

unlawfully extended by more than two years in federal

prison. See Wynn, 845 F. App’x at 65. But consider just

three petitioners from last term—each faced years of

additional prison time solely because of the

Commission’s commentary. See Tabb, 949 F.3d at 83

(118-month increase); Lovato, 950 F.3d at 1349 (30-

14

month increase); Broadway, 815 F. App’x at 95 (81month increase). In 2020, moreover, nearly 65,000

people were sentenced to federal prison, with more

than half facing some form of enhancement based on

prior criminal convictions. See U.S. Sentencing

Commission, Overview of Federal Criminal Cases FY

2020 at 1, 7 (Apr. 2021) available at

https://www.ussc.gov/sites/default/files/pdf/researchand-publications/researchpublications/2021/FY20_Overview_Federal_Criminal

_Cases.pdf. How many decades of time spent in prison

without a lawful basis warrant this Court’s

intervention? Whatever the number, it surely has

been surpassed.

The Commission, moreover, remains incapable

of curing the constitutional defect. Now with only one

commissioner, the Commission has sat idle since

January 2019. Nate Raymond, U.S. Sentencing

Panel’s Last Member Urges Biden to Revive

Commission,

Reuters

(Nov.

11,

2021)

https://www.reuters.com/legal/government/ussentencing-panels-last-member-breyer-urges-bidenrevive-commission-2021-11-11/. It has no nominees

for the six vacant seats, and its last remaining

member’s term officially expired last month. Id. Even

if it were inclined to do so, the Commission will not

wade into this crisis.

CONCLUSION

“As [this Court has] explained on many prior

occasions, the separation of powers is designed to

preserve the liberty of all the people.” Collins v. Yellen,

141 S. Ct. 1761, 1780 (2021). When power is

improperly consolidated, violations of other rights

15

have no remedy. But Wynn and countless others have

been sentenced to years of additional prison time

through the Commission’s improper arrogation of

power. The lower courts that have refused to correct

this injustice threaten all of our liberty and have

undermined their own legitimacy. This Court should

grant Wynn’s petition for a writ of certiorari to correct

these injustices.

DATED: November, 2021.

Respectfully submitted,

OLIVER J. DUNFORD

Counsel of Record

CALEB KRUCKENBERG

Pacific Legal Foundation

555 Capitol Mall, Ste 1290

Sacramento, CA 9581

Telephone: (916) 419-7111

ODunford@pacificlegal.org

CKruckenberg@pacificlegal.org

Counsel for Amicus Curiae

Pacific Legal Foundation