Petition for Writ of Certiorari — Lenair Moses, Petitioner v. United States
Supreme Court briefAug 19, 2022
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No. 22-____
IN THE
Supreme Court of the United States
_________
LENAIR MOSES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
_________
MARSHALL H. ELLIS
HORNTHAL, RILEY, ELLIS
& MALAND, LLP
301 East Main Street
Elizabeth City, NC 27909
(252) 335-0871
mellis@hrem.com
CATHERINE E. STETSON
Counsel of Record
WILLIAM E. HAVEMANN
DANIELLE DESAULNIERS
STEMPEL
MICHAEL J. WEST
HOGAN LOVELLS US LLP
555 Thirteenth Street, NW
Washington, DC 20004
(202) 637-5600
cate.stetson@hoganlovells.com
Counsel for Petitioner
QUESTION PRESENTED
In Stinson v. United States, 508 U.S. 36 (1993), this
Court held that Seminole Rock deference, now generally known as Auer deference, applies to interpretive
or explanatory commentary in the U.S. Sentencing
Guidelines Manual. Id. at 38. In Kisor v. Wilkie, 139
S. Ct. 2400 (2019), this Court clarified the limits on
this deference, and made clear that courts may extend
Auer or Seminole Rock deference only where the law
remains “genuinely ambiguous” after the court has
“exhausted all the traditional tools of construction.”
Id. at 2415 (quotation marks omitted). The circuits
are deeply divided over whether Kisor’s holding applies in the Guidelines context.
The questions presented are:
1. Whether the limits on agency deference announced in Kisor constrain the deference that courts
may accord to the commentary to the Sentencing
Guidelines.
2. Whether deference to the Guidelines commentary
is impermissible in any form.
(i)
ii
PARTIES TO THE PROCEEDING
Lenair Moses, petitioner on review, was the appellant below.
The United States of America, respondent on review, was the appellee below.
iii
RELATED PROCEEDINGS
U.S. Court of Appeals for the Fourth Circuit:
United States v. Moses, No. 21-4067 (4th Cir.
Jan. 19, 2022) (reported at 23 F.4th 347)
United States v. Moses, No. 21-4067 (4th Cir.
Mar. 23, 2022) (not reported)
U.S. District Court for the Eastern District of North
Carolina:
United States v. Moses, No. 5:19-cr-00339-FL1 (E.D.N.C. Feb. 9, 2021)
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED...........................................i
PARTIES TO THE PROCEEDING ........................... ii
RELATED PROCEEDINGS ..................................... iii
TABLE OF AUTHORITIES ....................................... vi
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 2
GUIDELINES PROVISIONS INVOLVED ................ 2
INTRODUCTION ........................................................ 2
STATEMENT .............................................................. 6
A. The Sentencing Guidelines ......................... 6
B. Stinson v. United States .............................. 8
C. Kisor v. Wilkie ............................................. 9
D. Procedural History .................................... 10
REASONS FOR GRANTING THE
PETITION ............................................................ 15
I. THE CIRCUITS ARE DEEPLY DIVIDED
OVER THE LEVEL OF DEFERENCE
OWED TO THE GUIDELINES
COMMENTARY .................................................. 15
A. Four Circuits Adhere To Kisor In
the Guidelines Context ............................. 15
B. Four Circuits Expressly Refuse To
Adhere To Kisor In The
Guidelines Context .................................... 18
C. Four Circuits Continue To Defer
To The Commentary Under
Stinson Even After Kisor .......................... 20
v
TABLE OF CONTENTS—Continued
Page
D. The Split Will Not Resolve
Without This Court’s Intervention ........... 22
II. THE DECISION BELOW CONFLICTS
WITH THIS COURT’S PRECEDENT ..................... 23
III. DEFERENCE IS ENTIRELY
UNWARRANTED IN THE CRIMINAL
CONTEXT .......................................................... 29
IV. THIS CASE IS AN IDEAL VEHICLE TO
ADDRESS THE IMPORTANT QUESTIONS
PRESENTED ...................................................... 30
CONCLUSION .......................................................... 37
APPENDIX
APPENDIX A—Fourth Circuit’s Opinion
(Jan. 19, 2022) ................................................... 1a
APPENDIX B—District Court’s
Transcript of Sentencing Hearing
(Feb. 9, 2021) ................................................... 28a
APPENDIX C—Fourth Circuit’s Order
Denying Rehearing (Mar. 23, 2022) ............... 47a
vi
TABLE OF AUTHORITIES
Page(s)
CASES:
Auer v. Robbins,
519 U.S. 452 (1997) ...................................... passim
Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410 (1945) ...................................... passim
Braxton v. United States,
500 U.S. 344 (1991) .............................................. 23
Christensen v. Harris County,
529 U.S. 576 (2000) ................................................ 3
Gall v. United States,
552 U.S. 38 (2007) ............................................ 7, 31
Guedes v. Bureau of Alcohol, Tobacco,
Firearms & Explosives,
140 S. Ct. 789 (2020) ........................................ 5, 29
Guerrant v. United States,
142 S. Ct. 640 (2022) ............................................ 23
Kisor v. Wilkie,
139 S. Ct. 2400 (2019) .................................. passim
Lyng v. Payne,
476 U.S. 926 (1986) .............................................. 25
Mistretta v. United States,
488 U.S. 361 (1989) ................................................ 6
Molina-Martinez v. United States,
578 U.S. 189 (2016) .................................. 30, 31, 33
Perez v. Mortg. Bankers Ass’n,
575 U.S. 92 (2015) ................................................ 25
Rita v. United States,
551 U.S. 338 (2007) .............................................. 31
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Robertson v. Methow Valley Citizens
Council,
490 U.S. 332 (1989) .............................................. 25
Stinson v. United States,
508 U.S. 36 (1993) ........................................ passim
The Adventure,
1 F. Cas. 202 (No. 93) (C.C. Va. 1812) ................. 29
Udall v. Tallman,
380 U.S. 1 (1965) .................................................. 25
United States v. Booker,
543 U.S. 220 (2005) ................................................ 6
United States v. Broadway,
815 F. App’x 95 (8th Cir. 2020) ........................... 21
United States v. Cantrell,
817 F. App’x 614 (10th Cir. 2020) ....................... 22
United States v. Chambers,
878 F.3d 616 (8th Cir. 2017) ................................ 35
United States v. Cingari,
952 F.3d 1301 (11th Cir. 2020) ............................ 20
United States v. Clayborn,
951 F.3d 937 (8th Cir. 2020) ................................ 21
United States v. Crum,
934 F.3d 963 (9th Cir. 2019) ................................ 19
United States v. Cruz-Flores,
799 F. App’x 245 (5th Cir. 2020) ......................... 19
United States v. Cuevas-Lopez,
934 F.3d 1056 (9th Cir. 2019) .............................. 19
viii
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Dugger,
No. 21-14010, 2022 WL 2800204 (11th
Cir. July 18, 2022) ................................................ 20
United States v. Dupree,
25 F.4th 1341 (11th Cir. 2022) ...................... 20, 22
United States v. Govan,
165 F.3d 912 (4th Cir. 1998) .......................... 11, 35
United States v. Havis,
907 F.3d 439 (6th Cir. 2018) ................................ 29
United States v. Havis,
927 F.3d 382 (6th Cir. 2019) (en banc) ................ 29
United States v. Hightower,
25 F.3d 182 (3d Cir. 1994) ............................. 15, 16
United States v. Houtar,
980 F.3d 268 (2d Cir. 2020) ................................. 21
United States v. Jett,
982 F.3d 1072 (7th Cir. 2020) .............................. 21
United States v. Kirilyuk,
29 F.4th 1128 (9th Cir. 2022) .............................. 20
United States v. Larionoff,
431 U.S. 864 (1977) .............................................. 25
United States v. Lewis,
963 F.3d 16 (1st Cir. 2020) ............................ 17, 32
United States v. Nasir,
17 F.4th 459 (3d Cir. 2021) (en banc) .......... passim
United States v. Nkome,
987 F.3d 1262 (10th Cir. 2021) ............................ 22
United States v. Nunez,
958 F.2d 196 (7th Cir. 1992) ................................ 35
ix
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Pratt,
No. 20-10328, 2021 WL 5918003 (9th
Cir. Dec. 15, 2021) ................................................ 19
United States v. Riccardi,
989 F.3d 476 (6th Cir. 2021) .............. 16, 17, 25, 32
United States v. Roederer,
11 F.3d 973 (10th Cir. 1993) ................................ 35
United States v. Smith,
989 F.3d 575 (7th Cir. 2021) ................................ 21
United States v. Tabb,
949 F.3d 81 (2d Cir. 2020) ................................... 21
United States v. Vargas,
35 F.4th 936 (5th Cir. 2022) .......................... 18, 19
United States v. White,
850 F.3d 667 (4th Cir. 2017) ................................ 31
United States v. Winstead,
890 F.3d 1082 (D.C. Cir. 2018) ...................... 17, 18
United States v. Wynn,
845 F. App’x 63 (2d Cir. 2021) ............................. 21
United States v. Yepez,
704 F.3d 1087 (9th Cir. 2012) (en banc) .............. 32
Whitman v. United States,
574 U.S. 1003 (2014) ............................................ 29
Wooden v. United States,
142 S. Ct. 1063 (2022) .......................................... 29
STATUTES:
5 U.S.C. § 801 ......................................................... 27
5 U.S.C. § 802 ......................................................... 27
x
TABLE OF AUTHORITIES—Continued
Page(s)
7 U.S.C. § 13(a)(3) ................................................... 32
18 U.S.C. § 1520(b) ................................................. 32
21 U.S.C. § 333(a)(1) ............................................... 32
21 U.S.C. § 841(a)(1) ............................................... 10
28 U.S.C. § 991(a) ..................................................... 6
28 U.S.C. § 994(a)(1) ................................................. 6
28 U.S.C. § 994(a)(2) ................................................. 6
28 U.S.C. § 994(p) ..................................... 6, 7, 27, 32
28 U.S.C. § 994(x) ..................................... 6, 7, 24, 32
28 U.S.C. § 1254(1) ................................................... 2
42 U.S.C. § 7413(c)(1) ............................................. 32
Sentencing Reform Act of 1984, Pub. L.
No. 98-473, tit. II, 98 Stat. 1987 ............................ 6
RULES:
Sup. Ct. R. 30.1 ......................................................... 2
U.S.S.G. § 1B1.3 ....................................................... 2
U.S.S.G. § 1B1.3(a)(2) ....................................... 11, 35
U.S.S.G. § 1B1.3(a)(2) cmt. n.5(C) ......................... 12
U.S.S.G. § 1B1.7 ....................................................... 7
U.S.S.G. § 2B1.1 cmt. n.3 ....................................... 31
U.S.S.G. § 4A1.2(a)(1) ............................................. 11
U.S.S.G. § 4B1.1 ................................................. 7, 10
U.S.S.G. § 4B1.1(a) ................................................. 10
U.S.S.G. § 4B1.2(c) ................................................. 11
U.S. Sent’g Comm’n R. 2.2(b) ................................... 7
U.S. Sent’g Comm’n R. 4.1 ....................................... 7
xi
TABLE OF AUTHORITIES—Continued
Page(s)
U.S. Sent’g Comm’n R. 4.3 ....................................... 7
OTHER AUTHORITY:
U.S. Sent’g Comm’n, 2021 Annual Report
& Sourcebook of Federal Sentencing
Statistics, available at
https://bit.ly/3caZg9U .................................... 31, 33
IN THE
Supreme Court of the United States
_________
No. 22_________
LENAIR MOSES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
_________
Lenair Moses respectfully petitions for a writ of certiorari to review the judgment of the Fourth Circuit in
this case.
OPINIONS BELOW
The Fourth Circuit’s opinion is reported at 23 F.4th
347 (2022). Pet. App. 1a-27a. That court’s order denying rehearing and rehearing en banc is not reported.
Pet. App. 47a-60a. The Eastern District of North Carolina’s sentencing order is not currently reported. Pet.
App. 28a-46a.
(1)
2
JURISDICTION
The Fourth Circuit entered judgment on January
19, 2022. The petition for rehearing en banc was denied on March 23, 2022. Chief Justice Roberts
granted a 60-day extension of the period for filing this
petition to August 20, 2022. This Court’s jurisdiction
is invoked under 28 U.S.C. § 1254(1).
GUIDELINES PROVISIONS INVOLVED
Section 4B1.1 of the U.S. Sentencing Guidelines provides in relevant part that a “defendant is a career offender if * * * the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.”
Section 1B1.3 of the U.S. Sentencing Guidelines provides in relevant part that prior convictions cannot be
predicates for a career-offender enhancement if they
involved “acts and omissions * * * that were part of
the same course of conduct or common scheme or plan
as the offense of conviction.”
INTRODUCTION
This case implicates a deep and acknowledged circuit split over whether the limitations imposed by Kisor v. Wilkie, 139 S. Ct. 2400 (2019), constrain the deference that courts accord the commentary interpreting the U.S. Sentencing Guidelines.
In Stinson v. United States, 508 U.S. 36, 44-45
(1993), this Court held that Guidelines commentary is
subject to deference under Seminole Rock, now generally known as Auer deference. Under this form of deference, “provided an agency’s interpretation of its own
regulations does not violate the Constitution or a federal statute, it must be given ‘controlling weight unless it is plainly erroneous or inconsistent with the
3
regulation.’ ” Id. at 45 (quoting Bowles v. Seminole
Rock & Sand Co., 325 U.S. 410, 414 (1945)); see also
Auer v. Robbins, 519 U.S. 452, 461 (1997) (same).
Kisor, however, sharply limited the circumstances in
which courts may accord Auer or Seminole Rock deference. Addressing concerns that such deference
gives rise to a “systematic judicial bias in favor of the
federal government,” Kisor, 139 S. Ct. at 2425 (Gorsuch, J., concurring in the judgment) (quotation
marks omitted), the Court made clear that “reflexive”
deference to agency interpretations is inappropriate,
id. at 2415 (majority op.) (quotation marks omitted).
After Kisor, a court may defer to an agency’s interpretation of its own regulation only where the regulation
remains “genuinely ambiguous” after the court has
“exhaust[ed] all the traditional tools of construction.”
Id. (quotation marks omitted). Kisor’s constraints
safeguard fundamental separation-of-powers interests and prevent agencies from adopting new regulations “under the guise of interpreting” existing regulations. Id. (quoting Christensen v. Harris County,
529 U.S. 576, 588 (2000)).
In the decision below, however, a divided Fourth
Circuit panel concluded that Kisor’s limits do not constrain the deference courts must accord the Guidelines commentary. According to the panel majority,
deference to the Guidelines commentary was “unaltered by Kisor.” Pet. App. 4a-5a. Thus, in the Fourth
Circuit, Guidelines commentary still remains “authoritative and binding, regardless of whether the relevant Guideline is ambiguous,” unless the interpretation is unlawful or plainly wrong. Id. at 22a. Deferring to the Guidelines commentary, and without attempting to evaluate whether the commentary was
4
ambiguous, the panel majority subjected Petitioner
Lenair Moses to a sixfold sentence enhancement, ordering that he spend a decade in federal prison for
selling $40 worth of crack cocaine.
The decision below deepened a circuit split over
whether Kisor’s limitations govern deference to the
Guidelines commentary. As the panel itself recognized, its approach diverges from that taken in “at
least” the Third and Sixth Circuits, both of which require courts to determine whether a Guideline is genuinely ambiguous before deferring to the commentary.
Id. at 4a.
The panel was right to say “at least,” because this
split implicates a far greater divide: Four circuits
have applied Kisor in the Guidelines context, four
have expressly refused to apply Kisor, and four have
continued to defer to the commentary under Stinson
without even acknowledging Kisor. Thus, every court
of appeals that hears criminal cases has weighed in.
The panel’s holding that Guidelines commentary remains binding “regardless of whether the relevant
Guideline is ambiguous” is not defensible after Kisor.
Stinson held that Seminole Rock deference applies to
Guidelines commentary. Kisor held that courts may
apply Seminole Rock deference only after confirming
that the underlying rule is “genuinely ambiguous.”
Kisor, 139 S. Ct. at 2415 (quotation marks omitted).
It follows that courts must determine whether a
Guideline is genuinely ambiguous before asking
whether deference to the commentary is warranted.
The panel majority’s grounds for ignoring Kisor boil
down to policy arguments about the efficiency and expertise of government bureaucracies. Those arguments could not justify the panel’s departure from this
5
Court’s precedent even if they were correct—and they
are categorically incorrect. No doubt for that reason,
even the government below acknowledged that the
panel’s refusal to apply Kisor was wrong.
This issue is exceptionally important. In refusing to
apply Kisor in the Guidelines context, the Fourth Circuit revived the freewheeling approach to deference
that Kisor constrained. And because of the Guidelines’ unique importance to federal sentencing, a rule
of mandatory deference will affect every criminal case
in the circuits that refuse to apply Kisor. No agency
or commission should have such sway over a federal
court’s interpretation of federal law.
The impropriety of deference is even more apparent
here because this is a criminal case, where deference
to the government can mean years longer in prison for
defendants like Moses. Deference should have “no
role to play when liberty is at stake.” Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 140
S. Ct. 789, 790 (2020) (Gorsuch, J., respecting denial
of certiorari). In these circumstances more than any
other, a defendant is entitled to nothing less than a
court’s “best independent judgment of the law’s meaning.” Kisor, 139 S. Ct. at 2426 (Gorsuch, J., concurring
in the judgment).
In his statement supporting the denial of rehearing
en banc below, Judge Niemeyer, the author of the
panel opinion, declared that he “would welcome the
Supreme Court’s advice on” this issue. Pet. App. 52a.
This Court should accept the invitation.
6
STATEMENT
A. The Sentencing Guidelines
In response to “[f]undamental and widespread dissatisfaction with the uncertainties and the disparities” involved in federal sentencing, Congress enacted
the Sentencing Reform Act of 1984, Pub. L. No. 98473, tit. II, 98 Stat. 1987. Mistretta v. United States,
488 U.S. 361, 366 (1989). The 1984 Act established
the United States Sentencing Commission “as an independent commission in the judicial branch of the
United States.” 28 U.S.C. § 991(a). Congress charged
the Commission with issuing “guidelines * * * for use
of a sentencing court in determining the sentence to
be imposed in a criminal case,” as well as “general policy statements regarding application of the guidelines.” Id. § 994(a)(1), (2).
The Commission periodically issues the U.S. Sentencing Guidelines Manual, which is structured as a
series of Guidelines and policy statements. The Commission must comply with the Administrative Procedure Act’s notice-and-comment requirements when
promulgating or amending a Guideline. See 28 U.S.C.
§ 994(x). The Commission must also “submit to Congress amendments to the guidelines” along with “a
statement of the reasons therefor.” Id. § 994(p).
The Sentencing Reform Act’s procedural constraints
reflect the Guidelines’ centrality to sentencing. Until
United States v. Booker, 543 U.S. 220 (2005), the
Guidelines were “binding on judges” and had “the
force and effect of laws.” Id. at 234. Even after Booker
made the Guidelines advisory, district courts remain
obligated to “begin their [sentencing] analysis with
7
the Guidelines and remain cognizant of them throughout the sentencing process.” Gall v. United States, 552
U.S. 38, 50 n.6 (2007).
The Guidelines Manual includes the Commission’s
commentary on the Guidelines. Such commentary
“may interpret the guideline or explain how it is be
applied.” U.S.S.G. § 1B1.7. Commentary may also
“suggest circumstances which, in the view of the Commission, may warrant departure from the guidelines.”
Id. Or it “may provide background information, including factors considered in promulgating the guideline or reasons underlying promulgation of the guideline.” Id.
As is typical when an agency interprets its own
rules, the Commission’s Guidelines commentary is not
itself subject to public notice and comment. Nor is it
subject to the Sentencing Reform Act’s congressionalreview procedures. See 28 U.S.C. § 994(p), (x); see also
U.S. Sent’g Comm’n R. 4.3 (“The Commission may
promulgate commentary and policy statements, and
amendments thereto, without regard to the provisions
of 28 U.S.C. § 994(x).”). The Commission’s rules do,
however, provide that “the Commission shall endeavor to include amendments to * * * commentary in
any submission of guideline amendments to Congress” and “provide, to the extent practicable, comparable opportunities for public input on proposed policy
statements and commentary.” U.S. Sent’g Comm’n R.
4.1, R. 4.3. The rules also prohibit amendments to the
commentary without “the affirmative vote of at least
four members at a public meeting.” Id. R. 2.2(b).
8
B. Stinson v. United States
In its 1993 decision in Stinson, this Court addressed
the level of deference courts should accord to Guidelines commentary. Stinson’s answer: a lot. According
to Stinson, “commentary in the Guidelines Manual
that interprets or explains a guideline is authoritative
unless it violates the Constitution or a federal statute,
or is inconsistent with, or a plainly erroneous reading
of, that guideline.” 508 U.S. at 38.
The Court concluded that granting “this measure of
controlling authority to the commentary” was appropriate because “commentary [should] be treated as an
agency’s interpretation of its own legislative rule.” Id.
at 44-45. Although this analogy was “not precise,” the
Court reasoned that “the guidelines are the equivalent of legislative rules adopted by federal agencies.”
Id. And because “[t]he functional purpose of commentary” is to assist courts “in the interpretation and application of those rules, * * * this type of commentary
is akin to an agency’s interpretation of its own legislative rules.” Id. at 45.
The Court therefore concluded that courts should accord Guidelines commentary the level of deference
owed to an agency’s interpretation of its own legislative rule: Seminole Rock deference. Stinson’s holding
quoted Seminole Rock: “provided an agency’s interpretation of its own regulations does not violate the
Constitution or a federal statute, it must be given ‘controlling weight unless it is plainly erroneous or inconsistent with that regulation.’ ” Id. (quoting 325 U.S.
at 414). The Court then applied Seminole Rock deference in accepting the Sentencing Commission’s interpretation of the Guideline at issue. Id. at 47.
9
C. Kisor v. Wilkie
Seminole Rock deference eventually was relabeled
Auer deference. See Auer, 519 U.S. at 461. For more
than 20 years, this Court relied on Auer deference to
uphold agency interpretations “without significant
analysis of the underlying regulation” or “without
careful attention to the nature and context of the interpretation.” Kisor, 139 S. Ct. at 2414.
Then came Kisor. There, the Court considered
whether to overrule Seminole Rock and Auer and “discard[ ] the deference they give to agencies.” Id. at
2408. Relying on stare decisis, a majority of this Court
declined to overrule Auer entirely. Id. at 2422-23. But
every member of the Court agreed that the Court
needed to “reinforc[e]”—and “somewhat expand on”—
“some of the limits inherent in the Auer doctrine.” Id.
at 2414, 2415 (majority op.); see also id. at 2448 (Gorsuch, J., concurring in the judgment); id. at 2448-49
(Kavanaugh, J., concurring in the judgment). Such
“clear[ing] up” was necessary because, “in a vacuum,”
Seminole Rock’s “classic formulation of the test—
whether an agency’s construction is plainly erroneous
or inconsistent with the regulation—may suggest a
caricature of the doctrine, in which deference is reflexive.” Id. at 2414-15 (majority op.) (quotation marks
and citations omitted). Properly applied, this Court
emphasized, Auer does not “bestow[ ] on agencies expansive, unreviewable authority.” Id. at 2415 (quotation marks omitted). On the contrary, Auer “gives
agencies their due, while also allowing—indeed, obligating—courts to perform their reviewing and restraining functions.” Id.
Kisor thus emphasizes, “[f]irst and foremost,” that
“a court should not accord Auer deference unless the
10
regulation is genuinely ambiguous.” Id. “And before
concluding that a rule is genuinely ambiguous, a court
must exhaust all the ‘traditional tools’ of construction.” Id. (citation omitted). “If genuine ambiguity remains, moreover, the agency’s reading must still be
‘reasonable.’ ” Id. (citation omitted). And then courts
“must make an independent inquiry into whether the
character and context of the agency interpretation entitles it to controlling weight.” Id. at 2416.
Kisor explained that Auer deference and Seminole
Rock deference are synonymous. Id. at 2408. And the
Kisor plurality identified Stinson as one of this Court’s
“pre-Auer[ ] decisions applying Seminole Rock deference.” Id. at 2411 n.3 (plurality op.).
D. Procedural History
1. Police in Raleigh enlisted a confidential informant to buy crack cocaine from Petitioner Lenair Moses
on two occasions in October 2018. Pet. App. 5a. The
total amount of cocaine at issue—less than half a
gram—was sold for $40. Id.
Moses pleaded guilty to two counts of distributing a
controlled substance in violation of 21 U.S.C.
§ 841(a)(1). Id. The “probation officer determined
that, based on the quantity of drugs distributed, Moses’s base offense level was 12.” Id. But that base
offense level skyrocketed to 32 after the probation officer recommended that Moses be sentenced as a “career offender” under § 4B1.1 of the Sentencing Guidelines, which imposes a sentencing enhancement if,
among other things, a defendant “has at least two
prior felony convictions” for controlled substance offenses. U.S.S.G. § 4B1.1(a); Pet. App. 5a. One of the
prior convictions on which the probation officer relied
11
was a 2013 guilty plea for selling crack cocaine in Raleigh. Pet. App. 5a.
Applying this enhancement, the probation officer
recommended a Guidelines range of 151 to 188
months’ imprisonment. Id. at 6a. Had the career-offender enhancement not applied, Moses’s Guidelines
range would have been roughly a sixth of that: “21 to
27 months[ ].” Id.
Moses objected to the career-offender recommendation. Id. Guideline § 1B1.3 provides that a prior conviction does not qualify as a career-offender predicate
if it involves “relevant conduct” to the current offense.
See U.S.S.G. § 1B1.3(a)(2) (capitalization altered); see
also id. §§ 4A1.2(a)(1), 4B1.2(c). The Guideline defines “relevant conduct” to include acts “that were
part of the same course of conduct or common scheme
or plan as the offense of conviction.” Id. § 1B1.3(a)(2).
Moses explained that his 2013 guilty plea involved relevant conduct because the act at issue—the sale of a
small amount of crack cocaine in Raleigh—was “relevant conduct” to the act underlying his current offense—the sale of a small amount of crack cocaine in
Raleigh. Pet. App. 6a-7a. And Moses noted that the
government often treats drug offenses committed
years in the past as relevant conduct for purposes of
enhancing a defendant’s sentence. See, e.g., United
States v. Govan, 165 F.3d 912 (4th Cir. 1998) (per curiam) (drug offense five years earlier was relevant
conduct). Moses maintained that the same understanding that applies to enhance sentences should
equally apply to limit them.
The government, by contrast, urged the trial court
to impose the career-offender enhancement. Pet. App.
7a-8a. It relied on the Commission’s commentary in
12
Application Note 5(C) to Guideline § 1B1.3, which interprets the Guideline to mean that “conduct associated with a sentence that was imposed prior to” the
offense of conviction “is not considered as part of the
same course of conduct or common scheme or plan as
the offense of conviction.” U.S.S.G. § 1B1.3(a)(2) cmt.
n.5(C); see Pet. App. 8a.
The district court agreed with the government and
sentenced Moses as a career offender. Pet. App. 8a.
2. A divided panel of the Fourth Circuit affirmed.
The panel framed its task as deciding “the enforceability of and the weight to be given the official commentary of the Sentencing Guidelines.” Id. at 2a.
“[T]o make that determination,” the majority continued, it “must consider whether” courts “are required
to continue to apply the rules set forth in Stinson * * *
or whether Stinson was overruled” in Kisor. Id. at 2a3a. Thus, to determine the weight to be accorded to
the Guidelines commentary, the panel first had to decide whether the Guidelines are subject “to the Kisor
framework.” Id. at 4a.
In the panel majority’s view, the answer was no.
Recognizing that its conclusion “is not shared by at
least two circuits,” the majority held that Kisor is categorically inapplicable in the Guidelines context and
that Stinson “continues to apply unaltered by Kisor.”
Id. at 4a-5a.
The panel reached this conclusion by distinguishing
the Commission—“a unique government institution
located in the Third Branch” that is “judicial in nature,” id. at 15a, 17a—from other agencies, which the
panel described as “typically executive” bodies whose
“interpretations seek * * * to regulate the broad range
13
of people covered by the particular agency’s jurisdiction,” id. at 18a. And the panel found “scant suggestion in Kisor that the Court thought” Seminole Rock
and Auer “applied to the enforceability of and weight
to be given to Guidelines commentary.” Id. at 19a
(emphasis in original). As for the Kisor plurality’s
identification of Stinson as “applying Seminole Rock
deference,” 139 S. Ct. at 2411 n.3, the panel concluded
that the Kisor plurality had not given sufficiently
“close consideration” to Stinson, Pet. App. 19a n.*. As
the panel saw it, while Stinson “drew from Seminole
Rock, it did not conclude that the doctrine applied to
the official commentary of the Guidelines.” Id. (emphasis in original).
The panel majority also emphasized policy arguments it viewed as favoring deference to the commentary. It opined, for example, that if Guidelines commentary were “relegate[d] * * * to a status where it
could be considered only when the relevant Guideline
is genuinely ambiguous,” it would impose such a high
bar “on the use of commentary that, in many cases,
district judges would be unable to consult it.” Id. at
21a.
The panel thus held “that Guidelines commentary is
authoritative and binding, regardless of whether the
relevant Guideline is ambiguous, except when the
commentary ‘violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous
reading of,’ the Guideline.” Id. at 22a (quoting Stinson, 508 U.S. at 38). Then, “having concluded that
Stinson continues to provide the ‘standard that governs the decision whether particular interpretive or
explanatory commentary is binding,’ ” the panel majority “readily conclude[d] that Application Note 5(C)
14
is owed controlling deference,” such that the district
court correctly sentenced Moses as a career offender.
Id. at 22a-23a (quoting Stinson, 508 U.S. at 43).
Judge King dissented in part and concurred in the
judgment. He explained that the majority erred “in
concluding that the Supreme Court’s decision in Kisor
v. Wilkie, 139 S. Ct. 2400 (2019), is inapplicable” in
the Guidelines context. Id. at 27a.
3. Moses petitioned for rehearing en banc. The government opposed rehearing en banc but supported
panel rehearing, agreeing that the panel’s reasoning
was erroneous. The government “acknowledge[d] that
Kisor applies in the guidelines context and governs
how much deference the commentary receives.” U.S.
Resp. to Pet. for Reh’g En Banc at 11.
The Fourth Circuit denied panel rehearing, and denied rehearing en banc over five dissenting votes. Pet.
App. 47a-48a. In a statement supporting the denial of
rehearing en banc, Judge Niemeyer—the author of
the panel opinion—reiterated that the question “[a]t
the root of this case” is whether Kisor “overruled”
Stinson “for determining the enforceability of and
weight to be given the official commentary of the Sentencing Guidelines.” Id. at 49a. Judge Niemeyer rejected the view of Kisor pressed by both parties. Instead, he announced that, unless “the Supreme Court
expresses its view” to the contrary, the Fourth Circuit
will continue to accord binding deference to Guidelines commentary even where the relevant Guideline
itself is unambiguous. Id. at 49a-50a. Judge Niemeyer concluded by inviting “the Supreme Court’s advice” on this issue. Id. at 52a.
This petition follows.
15
REASONS FOR GRANTING THE PETITION
I. THE CIRCUITS ARE DEEPLY DIVIDED OVER THE
LEVEL OF DEFERENCE OWED TO THE
GUIDELINES COMMENTARY.
The decision below deepens an acknowledged circuit
split over whether Kisor constrains the deference
courts accord to the Guidelines commentary. Consistent with Kisor, four courts of appeals—the First,
Third, Sixth, and D.C. Circuits—have held that deference to the commentary is warranted only where the
relevant Guideline is genuinely ambiguous. In stark
contrast, four courts of appeals—the Fourth, Fifth,
Ninth, and Eleventh Circuits—have held that Kisor’s
limits on deference do not apply to the Guidelines
commentary. And four other courts of appeals—the
Second, Seventh, Eighth, and Tenth Circuits—have
continued to adhere to Stinson without acknowledging Kisor, such that circuit precedent now binds them
to adhere to Stinson. In total, all twelve circuits that
hear criminal cases have weighed in. This deep split
on an important question of federal law warrants this
Court’s intervention.
A. Four Circuits Adhere To Kisor In the
Guidelines Context.
In the First, Third, Sixth, and D.C. Circuits, courts
may only consult the Guidelines commentary only
when the Guideline itself is “genuinely ambiguous.”
The Third Circuit adopted this view in United States
v. Nasir, 17 F.4th 459, 469-472 (3d Cir. 2021) (en
banc). An earlier Third Circuit panel had held that
Stinson required deference to the commentary’s inclusion of inchoate crimes within the Guidelines’ definition of a “controlled substance offense.” United States
16
v. Hightower, 25 F.3d 182, 184, 187 (3d Cir. 1994). After Kisor, however, the Third Circuit reconsidered
that conclusion en banc and unanimously overruled it.
The en banc court explained that, under “the thenprevailing understanding of the deference that should
be given to agency interpretations of their own regulations,” Hightower had been correct. Nasir, 17 F.4th
at 470. But after Kisor, “it is clear that such an interpretation is unwarranted.” Id. at 471. Applying Kisor, the Third Circuit held that the Guidelines themselves did not define “controlled substance offenses” to
include inchoate crimes—and neither could the commentary. See id. at 471-472. As Judge Bibas explained in concurrence, if the “commentary sweeps
more broadly than the plain language of the guideline
it interprets, we must not reflexively defer,” because a
judge’s “lodestar must remain the law’s text, not what
the Commission says about that text.” Id. at 472 (Bibas, J., concurring).
In United States v. Riccardi, the Sixth Circuit followed suit, holding under Kisor that courts may defer
to the commentary only when the Guideline itself is
“genuinely ambiguous.” 989 F.3d 476, 485 (6th Cir.
2021) (quoting Kisor, 139 S. Ct. at 2414). Acknowledging that the court had “previously been quick to
give ‘controlling weight’ to the commentary without
asking” whether the underlying Guideline was ambiguous, the court acknowledged that Kisor required a
new approach. Id. at 484-485. The reason, the Sixth
Circuit explained, was “simple”—Stinson held that
courts must accord deference to the commentary under Seminole Rock; Kisor limited the circumstances in
which deference under Seminole Rock is appropriate.
Id. at 485. Thus, Kisor “applies just as much to Stinson (and the Commission’s guidelines) as it does to
17
Auer (and an agency’s regulations).” Id. Applying Kisor’s guideposts, the Sixth Circuit concluded that even
if the relevant Guideline could have multiple meanings, the definition articulated in the commentary
“cannot be considered a reasonable interpretation of—
as opposed to an improper expansion beyond—[the
Guideline’s] text.” Id. at 480.
The First Circuit has similarly recognized that Kisor’s limitations on deference apply to Guidelines commentary. In United States v. Lewis, the court
acknowledged “that Kisor sought to clarify the nuances of judicial deference to agency interpretations of
regulations,” and that after Kisor, “a court should not
afford Auer deference unless the regulation is genuinely ambiguous.” 963 F.3d 16, 24 (1st Cir. 2020)
(quoting Kisor, 139 S. Ct. at 2415). The court then applied Kisor’s limits in a case involving the Guidelines
commentary, concluding that circuit precedent survived Kisor because those cases did not “defer[ ] to an
application note that strayed beyond the zone of ambiguity in the Sentencing Guidelines.” Id.
In a pre-Kisor decision, the D.C. Circuit similarly refused to defer to commentary “with no grounding in
the guidelines themselves.” United States v. Winstead, 890 F.3d 1082, 1092 (D.C. Cir. 2018). Applying
the same interpretive tools this Court later highlighted in Kisor, the D.C. Circuit held that the Commission had “exceed[ed] its authority” by purporting
to add a new offense through Guidelines commentary.
Id. at 1090-91. The court added that “surely Seminole
Rock deference does not extend so far as to allow” the
Sentencing Commission “to invoke its general interpretive authority via commentary” to impose “a massive impact on a defendant.” Id. at 1092. Anticipating
18
Kisor’s reasoning, the court held that no deference
was owed because the Guideline at issue was not actually “ambiguous.” Id. at 1092 n.14.
B. Four Circuits Expressly Refuse To Adhere To Kisor In The Guidelines Context.
The Fourth, Fifth, Ninth, and Eleventh Circuits
have refused to apply Kisor’s limits when deferring to
the Guidelines commentary.
In the decision below, the Fourth Circuit squarely
held that “Kisor did not overrule Stinson’s standard
for the deference owed to Guidelines commentary.”
Pet. App. 4a. Instead, the court held that Kisor applies only “in the context of an executive agency’s interpretation of its own legislative rules.” Id. The
court concluded that “Stinson continues to apply unaltered by Kisor,” id. at 4a, and that the “commentary
is authoritative and binding, regardless of whether
the relevant Guideline is ambiguous, except when the
commentary ‘violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous
reading of,’ the Guideline,” id. at 22a (quoting Stinson,
508 U.S. at 38). The court acknowledged that “at
least” two other circuits—the Third and Sixth—hold
that Kisor governs deference to the Guidelines commentary, but rejected their conclusion based on the
“belie[f] that subjecting Guidelines commentary to the
Kisor framework would deny courts the benefit of
much of the Guidelines commentary.” Id. at 4a.
The Fifth Circuit reached the same conclusion in
United States v. Vargas, 35 F.4th 936, 940 (5th Cir.
2022). The court acknowledged that “Kisor cabined
the scope of Seminole Rock/Auer deference,” and further acknowledged “the divergence among our sister
19
circuits” on Kisor’s applicability to Guidelines commentary. Id. at 940 & n.3. But the court concluded
that it must continue to adhere to its pre-Kisor precedent according controlling deference to the commentary. “If we were writing on a blank slate,” the court
explained, “we might well agree with [the] argument
that Kisor changed Stinson’s calculus regarding the
deference owed to the Guidelines commentary.” Id. at
940. But because “Kisor did not discuss the Sentencing Guidelines or Stinson,” and because other Fifth
Circuit panels “have continued to afford deference to
the Guidelines commentary under Stinson, even after
Kisor,” the court concluded that it was bound by Stinson. Id.; see also United States v. Cruz-Flores, 799 F.
App’x 245, 246 (5th Cir. 2020) (per curiam) (deferring
to Guidelines commentary “[b]ecause there is currently no case law from the Supreme Court or this
court addressing the effect of Kisor on the Sentencing
Guidelines”).
The Ninth Circuit has also “continued to follow Stinson after Kisor.” United States v. Pratt, No. 20-10328,
2021 WL 5918003, at *2 (9th Cir. Dec. 15, 2021). In
one recent case, for example, the court noted that it
was “troubled that the Sentencing Commission has
exercised its interpretive authority to expand the definition of” a particular offense “without any grounding
in the text” of the Guideline, but concluded that it was
“nonetheless compelled” by circuit precedent to defer
to the commentary. United States v. Crum, 934 F.3d
963, 966 (9th Cir. 2019) (per curiam); see also United
States v. Cuevas-Lopez, 934 F.3d 1056, 1061 (9th Cir.
2019) (applying Stinson). As Judge Bress noted—in a
portion of a dissenting opinion with which the majority did not take issue—the Ninth Circuit “has continued to apply Stinson to Guidelines commentary after
20
Kisor,” such that, “[i]n this circuit, Stinson is still the
governing law for evaluating Guidelines commentary.” United States v. Kirilyuk, 29 F.4th 1128, 1149
(9th Cir. 2022) (Bress, J. dissenting); see id. at 113839 (majority op.) (noting that the majority’s interpretation “relied on Stinson,” rather than “the narrower
deference set out in Kisor”). Judge Bress likewise recognized the “disagree[ment]” among the circuits over
whether “courts should now evaluate the validity of
Guidelines commentary under the less deferential
test set forth in Kisor,” or instead whether “Stinson
continues to apply to Guidelines commentary.” Id. at
1149 (Bress, J., dissenting).
The Eleventh Circuit has also continued to accord
binding deference to the commentary under Stinson.
See, e.g., United States v. Cingari, 952 F.3d 1301,
1308-11 (11th Cir. 2020); United States v. Dugger, No.
21-14010, 2022 WL 2800204, at *4 (11th Cir. July 18,
2022) (per curiam). And the Eleventh Circuit recently
granted rehearing en banc to resolve the precise interpretive question the full Third Circuit addressed and
resolved in Nasir. See Pet. for Reh’g En Banc 1,
United States v. Dupree, No. 19-13776 (11th Cir. July
19, 2021); United States v. Dupree, 25 F.4th 1341
(11th Cir. 2022) (per curiam).
C. Four Circuits Continue To Defer To
The Commentary Under Stinson Even
After Kisor.
Even after Kisor, the Second, Seventh, Eighth, and
Tenth Circuits have continued to accord binding deference to the Guidelines commentary under Stinson
without directly addressing whether Stinson remains
valid.
21
The Second Circuit in 2020 rejected the argument
that the Guidelines commentary “conflicts with the
Guidelines text by improperly expanding it” because,
under Stinson, commentary “is valid and binding on
the judiciary unless it is ‘plainly erroneous or inconsistent with’ the Guidelines text.” United States v.
Tabb, 949 F.3d 81, 87 (2d Cir. 2020) (quoting Stinson,
508 U.S. at 45); see also United States v. Houtar, 980
F.3d 268, 278 (2d Cir. 2020) ( “we must follow the commentary’s direction” under Stinson). The Second Circuit has adhered to Stinson even where “the Kisor argument * * * was briefed and discussed at length during oral argument.” United States v. Wynn, 845 F.
App’x 63, 66 (2d Cir. 2021).
After Kisor, the Seventh Circuit has similarly continued to hold commentary “binding under Stinson” as
long as it is not plainly erroneous, without asking
whether the Guideline itself is ambiguous. United
States v. Jett, 982 F.3d 1072, 1078 (7th Cir. 2020); see
also United States v. Smith, 989 F.3d 575, 584 (7th
Cir. 2021).
The Eighth Circuit, too, has continued to defer to
commentary under Stinson, adhering to its longstanding tradition of “deferr[ing] to the commentary, not
out of its fidelity to the Guidelines text, but rather because it is not a plainly erroneous reading of it.”
United States v. Broadway, 815 F. App’x 95, 96 & n.2
(8th Cir. 2020) (per curiam) (quotation marks omitted)
(declining to overrule prior circuit precedent deferring
to the commentary under Stinson); see also United
States v. Clayborn, 951 F.3d 937, 940 (8th Cir. 2020)
(applying same circuit precedent).
22
The same is true in the Tenth Circuit, which, even
after Kisor, has highlighted that the “Guidelines commentary plays a significant role in elaborating on” the
meaning of the Guidelines under Stinson. United
States v. Nkome, 987 F.3d 1262, 1269 (10th Cir. 2021)
(deferring to commentary without citing Kisor or addressing whether underlying Guideline was ambiguous); see also United States v. Cantrell, 817 F. App’x
614, 619 (10th Cir. 2020) (same).
Although these circuits have not expressly refused
to apply Kisor’s constraints in the Guidelines context,
circuit precedent now precludes them from doing so.
Thus, all twelve circuits have weighed in on the split.
D. The Split Will Not Resolve Without This
Court’s Intervention.
The deep split among twelve circuits is highly unlikely to resolve itself without this Court’s intervention.
Since Kisor, most courts on both sides of the split,
including the Fourth Circuit below, have refused to
reconsider the issue en banc. See Pet. App. 47a-48a;
Order, Lewis, No. 18-1916 (1st Cir. Oct. 2, 2020); Order, United States v. Tabb, No. 18-338 (2d Cir. June 1,
2020); Order, United States v. Tate, No. 20-5071 (6th
Cir. July 16, 2021); Order, United States v. Crum, No.
17-30261 (9th Cir. Oct. 29, 2019); United States v. Lovato, No. 18-1468 (10th Cir. June 23, 2020); see also Order, United States v. Winstead, No. 12-3036 (D.C. Cir.
Sept. 5, 2018) (per curiam). Only the Third and Eleventh Circuits have granted rehearing en banc to address whether controlling deference to the Guidelines
commentary remains appropriate. See Nasir, 17
F.4th at 470-472; Dupree, 25 F.4th 1341; see also Pet.
23
for Reh’g En Banc, Vargas, No. 21-20140 (5th Cir.
June 23, 2022) (pending).
Nor can the Sentencing Commission itself resolve
this split. This Court often declines review in cases
involving the interpretation of a particular Guideline,
where the Commission itself can resolve the matter.
See Braxton v. United States, 500 U.S. 344, 348-349
(1991) (declining to resolve a question presented “because the Commission has already undertaken a proceeding that will eliminate circuit conflict over the
meaning” of the Guideline at issue); see also, e.g.,
Guerrant v. United States, 142 S. Ct. 640, 640-641
(2022) (statement of Sotomayor, J., respecting the denial of certiorari) (“It is the responsibility of the Sentencing Commission” to address a split concerning the
meaning of a Guideline). The Commission, however,
is not in a position to resolve the predicate question
regarding the extent to which deference to its commentary is warranted. It is solely the Judiciary’s responsibility to “make an independent inquiry into
whether the character and context of the agency interpretation entitles it to controlling weight.” Kisor,
139 S. Ct. at 2416. The split will persist until this
Court resolves it.
II.
THE DECISION BELOW CONFLICTS WITH THIS
COURT’S PRECEDENT.
As the government has conceded, the decision below
is incorrect. Applying Kisor, courts must evaluate
whether the underlying Guideline is genuinely ambiguous before deferring to the Sentencing Commission’s
commentary, just as courts must evaluate whether
any other agency rule is genuinely ambiguous before
24
deferring to an agency’s interpretation. This Court
should grant certiorari and reverse.
1. In Stinson, this Court held that the Guidelines
commentary is entitled to deference under Seminole
Rock. That conclusion was based on an analogy between the Commission and other “federal agencies.”
Stinson, 508 U.S. at 45. Just as an agency promulgates rules by virtue of a delegation from Congress,
“[t]he Sentencing Commission promulgates the guidelines by virtue of an express congressional delegation
of authority for rulemaking.” Id. at 44-45. And, just
like other agencies, the Commission promulgates the
Guidelines “through the informal rulemaking procedures” in the Administrative Procedure Act. Id. at 45
(citing 28 U.S.C. § 994(x)). Thus, the Court explained,
it was “correct” that the commentary should “be
treated as an agency’s interpretation of its own legislative rule.” Id. at 44.
Applying this analogy, the Stinson Court held that
the commentary should be accorded deference under
Seminole Rock. In describing the deference that
should apply to the commentary, the Court repeated
the Seminole Rock standard without quotation marks,
stating that commentary “is authoritative unless it violates the Constitution or a federal statute, or is consistent with, or a plainly erroneous reading of, that
guideline.” Id. at 38. The Stinson Court also quoted
from Seminole Rock twice, including in the sentence
setting forth the holding of the case. Id. at 45, 47
(quoting Seminole Rock, 325 U.S. at 414). Driving the
point home, Stinson supported its description of the
applicable deference by citing four cases granting
Seminole Rock deference to other agencies’ interpretations of their legislative rules. See id. at 45 (citing
25
Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 359 (1989) (U.S. Forest Service); Lyng v. Payne,
476 U.S. 926, 939 (1986) (Farmers Home Administration); United States v. Larionoff, 431 U.S. 864, 872873 (1977) (Department of the Navy); Udall v. Tallman, 380 U.S. 1, 16-17 (1965) (Department of the Interior)).
Kisor subsequently clarified “the limits inherent in”
Seminole Rock deference. 139 S. Ct. at 2415. Because
Stinson accorded Seminole Rock deference to the
Guidelines commentary, and because Kisor limited
the circumstances in which Seminole Rock deference
may be accorded, the limits identified in Kisor equally
govern the commentary. Indeed, the Kisor plurality
identified Stinson as one of the “legion” of “pre-Auer[ ]
decisions applying Seminole Rock deference.” Id. at
2411 n.3 (plurality op.); accord Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 114 (2015) (Thomas, J., concurring in the judgment) (noting that Stinson held that
commentary is “entitled to Seminole Rock deference”).
The merits of this case are thus straightforward.
“Stinson analogized to agency interpretations of regulations when adopting Seminole Rock’s plain-error
test for the commentary.” Riccardi, 989 F.3d at 485.
It follows that “Kisor’s clarification of the plain-error
test applies just as much to Stinson (and the Commission’s guidelines) as it does to Auer (and an agency’s
regulations).” Id. As Judge Bibas reasoned, while the
Sentencing Commission’s commentary used to be “almost dispositive,” the Stinson rule no longer governs
after Kisor. Nasir, 17 F.4th at 473 (Bibas, J., concurring) (citing Kisor, 139 S. Ct. at 2415).
26
No doubt for that reason, the government acknowledged below “that Kisor applies in the guidelines context and governs how much deference the commentary
receives.” U.S. Resp. to Pet. for Reh’g En Banc at 11.
It has previously taken the same position in this
Court, conceding that “Kisor sets forth the authoritative standards for determining whether particular
commentary is entitled to deference.” Br. in Opp. at
15, Tabb v. United States, No. 20-579 (U.S. Feb. 16,
2021) (quotation marks omitted).
2. The panel majority nonetheless refused to apply
Kisor. No part of the majority’s rationale withstands
scrutiny.
The panel first maintained that Stinson did not actually apply Seminole Rock deference. That is unsustainable. Stinson was rooted in an analogy between
the commentary and “an agency’s interpretation of its
own legislative rules.” 508 U.S. at 45. Stinson quoted
Seminole Rock twice, including as part of its core holding that deference was owed to the Guidelines commentary because it “does not run afoul of the Constitution or a federal statute, and it is not ‘plainly erroneous or inconsistent’ with” the Guideline. Id. at 47;
see id. at 45. The panel majority dutifully quoted this
holding, but followed the quotation with a “cleaned
up” parenthetical omitting Stinson’s citation to Seminole Rock. Pet. App. 17a.
The panel also omitted key context from Stinson’s
caveat that the analogy between the Guidelines commentary and other agency interpretations “is not precise.” Pet. App. 20a (quoting Stinson, 508 U.S. at 44).
Stinson’s full quote was: “Although the analogy is not
precise because Congress has a role in promulgating
the guidelines, we think the Government is correct in
27
suggesting that the commentary be treated as an
agency’s interpretation of its own legislative rule.” 508
U.S. at 44 (emphasis added). Stinson thus adopted
the analogy notwithstanding its imprecision. And the
analogy has only grown more apt in the years since.
In 1996, Congress enacted the Congressional Review
Act, which requires agencies to submit proposed rules
to Congress for review and possible rejection. 5 U.S.C.
§§ 801, 802. Congress thus now plays effectively the
same role in the legislative rulemaking process as it
does in promulgating the Guidelines. See 28 U.S.C.
§ 994(p).
The panel “recognize[d]” that the Kisor plurality
“did include a citation to Stinson” as one of this
Court’s pre-Auer decisions “applying Seminole Rock.”
Pet. App. 19a n.*. But the Kisor plurality’s reference
to Stinson did not satisfy the panel, which concluded,
after “close consideration of Stinson,” that the plurality got it wrong. Id. Instead, the panel maintained
that the Commission does not resemble other federal
agencies and the Guidelines do not resemble legislative rules. Id. at 17a-18a. But Stinson already considered these same arguments and came to the opposite conclusion: “[T]he guidelines are the equivalent
of legislative rules adopted by federal agencies,” and
“commentary is akin to an agency’s interpretation of
its own legislative rules.” 508 U.S. at 45.
Having freed itself from this Court’s precedent, the
panel concluded that mandatory deference to Guidelines commentary (absent unlawfulness or plain error) was desirable on policy grounds. Pet. App. 20a22a. “Over the years,” the panel observed, “district
judges have routinely consulted commentary to understand and apply the Guidelines, and they never
28
felt themselves restrained in doing so by any notion
that commentary was binding only when the Guideline was ambiguous.” Id. at 16a. The panel refused
to “relegate” the Guidelines commentary “to a status
where it could be considered only when the relevant
Guideline is genuinely ambiguous,” because doing so
would impose a “burden on the use of commentary”
and thus deprive courts of the Sentencing Commission’s expertise. Id. at 21a.
This Court in Kisor rejected virtually identical logic.
See Br. of Administrative Law Scholars at 6, Kisor,
139 S. Ct. 2400 (No. 18-15) (arguing that Auer deference should be preserved because it “reflects appropriate respect for the superior fact-finding and policymaking capabilities of administrative agencies”). The
Court recognized that agencies often possess “substantive expertise,” and treated that as a reason not
to abandon deference entirely. Kisor, 139 S. Ct. at
2417. But it also noted that agency expertise cannot
justify abdicating courts’ “critical role” in interpreting
the law. Id. at 2423; see id. at 2415. And it highlighted the “far-reaching influence of agencies and the
opportunities such power carries for abuse.” Id. at
2423. Kisor limited the risk of such abuse by ensuring
that courts “must first exhaust [the] traditional tools
of statutory construction” before deferring to agency
expertise. Nasir, 14 F.4th at 472 (Bibas, J., concurring). The panel majority was not at liberty to refashion the balance that Kisor struck merely because it did
not share this Court’s view.
29
III. DEFERENCE IS ENTIRELY UNWARRANTED IN
THE CRIMINAL CONTEXT.
In the alternative, this Court should conclude that
deference to the Guidelines commentary in the criminal context is entirely inappropriate, Kisor notwithstanding. Where courts are asked to defer to a government agency’s interpretation of the law in criminal
cases, “alarm bells should be going off.” United States
v. Havis, 907 F.3d 439, 450 (6th Cir. 2018) (Thapar,
J., concurring), opinion vacated on reh’g en banc, 927
F.3d 382 (6th Cir. 2019) (per curiam). Whatever else
one thinks about agency deference, it should have “no
role to play when liberty is at stake.” Guedes, 140 S.
Ct. at 790 (Gorsuch, J., respecting denial of certiorari).
“Courts play a vital role in safeguarding liberty and
checking punishment.” Nasir, 17 F.4th at 474 (Bibas,
J., concurring). Acting in that role, common-law
courts have for centuries applied the rule of lenity, under which courts must construe penal laws “strictly.”
Wooden v. United States, 142 S. Ct. 1063, 1082 (2022)
(Gorsuch, J., concurring in the judgment). This rule
reflects “the tenderness of the law for the rights of individuals,” id. (citation omitted), and “serves our nation’s strong preference for liberty,” Nasir, 17 F.4th at
473 (Bibas, J., concurring). In light of this “presumption of liberty,” there is “no compelling reason to defer
to a Guidelines comment that is harsher than the
text.” Id. at 474; cf. Whitman v. United States, 574
U.S. 1003 (2014) (Scalia, J., respecting the denial of
certiorari) (deference in criminal cases turns normal
interpretive principles “upside-down, replacing the
doctrine of lenity with a doctrine of severity” (quotation marks omitted)).
30
The panel allowed that Kisor “understandably” imposed “substantial restrictions on courts’ reliance on
agencies’ interpretations of their rules” in the civil
context. Pet. App. 18a. But the panel maintained
that the reasons for limiting agency deference in the
civil context apply with less force in the criminal context. Id. That is exactly backwards. See Kisor, 139 S.
Ct. at 2433 (Gorsuch, J., concurring in the judgment)
(if a judge “said he was sending a defendant to prison
for longer than he believed appropriate only in deference to the government’s ‘reasonable’ sentencing recommendation, would anyone really think that complied with the law?”). Particularly in the criminal context, “judges owe the people who come before them
nothing less than a fair contest, where every party has
an equal chance to persuade the court of the interpretation of the law’s demands.” Id. at 2425. The panel
abdicated that obligation, and subjected Moses to a
sixfold sentence enhancement—not because the commentary reflects the correct understanding of the
Guideline, but merely because it is not a plainly erroneous one. The “binding” and “controlling” deference
that the panel held must be granted to the Guidelines
commentary deprives criminal defendants of their
right to an independent judiciary in cases where that
right is most critical.
IV. THIS CASE IS AN IDEAL VEHICLE TO ADDRESS
THE IMPORTANT QUESTIONS PRESENTED.
1. The question whether and in what circumstances
courts must defer to the Guidelines commentary is exceptionally consequential.
The Guidelines play a “central role in sentencing.”
Molina-Martinez v. United States, 578 U.S. 189, 191
(2016). “[D]istrict courts must begin their analysis
31
with the Guidelines and remain cognizant of them
throughout the sentencing process.” Gall, 552 U.S. at
50 n.6 (emphasis added). “A district court that improperly calculates a defendant’s Guidelines range
* * * has committed a significant procedural error.”
Molina-Martinez, 578 U.S. at 199 (quotation marks
and brackets omitted). By contrast, a sentence within
a properly calculated Guidelines range may be presumed reasonable. See Rita v. United States, 551 U.S.
338, 347 (2007); see also, e.g., United States v. White,
850 F.3d 667, 674 (4th Cir. 2017). Given the centrality of the Guidelines in federal sentencing, it is no surprise that from 2012 through 2021, judges imposed a
within-Guidelines sentence 75% of the time.1
In circuits that continue to apply Stinson’s rule of
mandatory deference to the Guidelines commentary,
courts must evaluate the commentary in calculating a
defendant’s Guidelines range, even where the applicable Guideline is unambiguous. If a court declines to
follow the commentary, it must provide a persuasive
reason for the departure. See Gall, 552 U.S. at 50 (district courts must offer a “sufficiently compelling” “justification” for varying from a within-Guidelines sentence). The Stinson rule thus transforms the sentencing court’s task—from applying the Guidelines to applying the commentary. District courts in circuits
that adhere to Stinson, for example, must apply the
three-page-long interpretation of the word “loss” in
the commentary to Sentencing Guideline § 2B1.1, or
persuasively explain why they are not. See U.S.S.G.
§ 2B1.1 cmt. n.3. District courts must even defer to
1
U.S. Sent’g Comm’n, 2021 Annual Report & Sourcebook of Federal
Sentencing
Statistics
at
85,
available
at
https://bit.ly/3caZg9U.
32
silences in the commentary, or, again, persuasively explain why they are not. See United States v. Yepez,
704 F.3d 1087, 1090-91 (9th Cir. 2012) (en banc) (per
curiam).
Mandatory deference to the commentary, moreover,
permits the Sentencing Commission to circumvent the
procedural restrictions that Congress imposed on
amending the Guidelines. The Commission may
amend a Guideline only through notice-and-comment
rulemaking and congressional review. See 28 U.S.C.
§ 994(p), (x). But in the circuits that continue to apply
Stinson, the Commission can effectively amend a
Guideline by amending the commentary. Under Stinson, “[a]mended commentary is binding on the federal
courts even though it is not reviewed by Congress.”
508 U.S. at 46 (emphasis added). Mandatory deference to the commentary thus empowers the Commission “to use its commentary as a Trojan horse for rulemaking.” Lewis, 963 F.3d at 28 (Torruella & Thompson, JJ., concurring); see also Riccardi, 989 F.3d at 485
(similar).
The rule of mandatory deference to Guidelines commentary also creates a strange tension where federal
regulatory crimes are concerned. Federal statutes frequently impose criminal penalties for violating agency
regulations. E.g., 42 U.S.C. § 7413(c)(1) (Clean Air
Act); 18 U.S.C. § 1520(b) (Sarbanes-Oxley Act); 21
U.S.C. § 333(a)(1) (Food, Drug, and Cosmetic Act); 7
U.S.C. § 13(a)(3) (Commodity Exchange Act). In circuits that adhere to Stinson, defendants sentenced for
such crimes may encounter stacked levels of deference—a rigorous Kisor inquiry into the agency’s interpretation of its regulations, followed by obliging Stinson deference to the Guidelines commentary.
33
Mandatory deference to the Guidelines commentary
affects thousands of individuals every year. Of the
more than 57,000 criminal defendants sentenced in
2021, nearly two-thirds were sentenced in the four circuits that expressly refuse to follow Kisor, and nearly
90% were sentenced in the eight circuits that have adhered to Stinson even after Kisor. See U.S. Sent’g
Comm’n, supra, at 35-36. In these circuits, the Commission, rather than the sentencing court, has the primary say over what even an unambiguous Guideline
means—raising the exact concerns this Court in Kisor
intended to quell, in a context where the case for deference is at its weakest.
In the four circuits that properly follow Kisor, by
contrast, a sentencing court cannot defer to the Guidelines commentary without first establishing that the
underlying Guideline is genuinely ambiguous. The
circuits’ inconsistent approaches to federal sentencing
undermine one of the primary goals of the Sentencing
Reform Act, which “was to achieve uniformity in sentencing * * * imposed by different federal courts for
similar criminal conduct.” Molina-Martinez, 578 U.S.
at 192 (quotation marks omitted).
2. This case is an ideal vehicle to address whether
Kisor governs deference to the Guidelines commentary. The decision below squarely confronted that
question. See Pet. App. 2a-3a. It acknowledged that
its decision deepened a circuit split. Id. at 4a. And in
his opinion supporting the denial of rehearing en
banc, Judge Niemeyer offered that the Fourth Circuit
“would welcome the Supreme Court’s advice on
whether Stinson or Kisor controls” deference to the
Guidelines commentary. Id. at 52a.
34
Although this Court has previously denied a petition
purporting to present a similar question, see Tabb v.
United States, No. 20-579 (cert. denied June 21, 2021),
that petition suffered from vehicle problems not implicated here. It arose in the context of a split over
whether to defer to commentary that interpreted the
career-offender Guideline to include inchoate offenses. See Pet. for a Writ of Cert., Tabb, No. 20-579
(Oct. 28, 2020). As the government noted in opposing
certiorari, this Court had repeatedly denied review of
that issue, and the Sentencing Commission had “already begun the process of addressing the recent disagreement.” Br. in Opp. at 9, Tabb, No. 20-579 (U.S.
Feb. 16, 2021). Here, by contrast, the Sentencing
Commission itself cannot decide what deference is
owed to the commentary. Only this Court can. In addition, the Second Circuit decision from which the petitioner in Tabb sought review “did not address th[e]
methodological question” whether courts must first
conclude that a Guideline is ambiguous under Kisor
before deferring. Id. at 18. Here, by contrast, the
panel majority unmistakably concluded that deference was warranted “even when the related Guideline
is unambiguous.” Pet. App. 2a. And the split has
deepened since this Court denied review in Tabb,
making this Court’s review all the more urgent.
In the proceedings below, the government conceded
that the panel erred in refusing to apply Kisor, but
nonetheless opposed rehearing en banc on the ground
that deference would be appropriate even under Kisor,
because the commentary is a “reasonable interpretation” of the Guideline. U.S. Resp. to Pet. for Reh’g En
Banc at 6. That argument provides no basis for denying review. For one thing, it is incorrect: Under the
35
plain meaning of the Guidelines, the conduct underlying Moses’s earlier conviction—the sale of a small
amount of crack cocaine in Raleigh—was relevant to
the conduct underlying his current conviction—the
sale of a small amount of crack cocaine in Raleigh. See
U.S.S.G. § 1B1.3(a)(2). As Moses noted below, courts
and the government often treat offenses committed
years in the past as “relevant conduct” for purposes of
enhancing defendants’ sentences. See, e.g., United
States v. Chambers, 878 F.3d 616, 622-623 (8th Cir.
2017) (per curiam) (seven years); Govan, 165 F.3d 912
(five years); United States v. Roederer, 11 F.3d 973,
979-980 (10th Cir. 1993) (five years). Courts and the
government also discount temporal gaps between the
current offense and prior relevant conduct where, as
here, the lapse coincided with a participant’s arrest
and incarceration. See Pet. App. 7a-8a; see, e.g.,
United States v. Nunez, 958 F.2d 196, 198 (7th Cir.
1992); see also, e.g., Br. of United States, Plaintiff-Appellee at 17-18, United States v. Reina, 244 F.3d 141
(11th Cir. 2000) (Table) (No. 99-15198), 1999 WL
33649942. There is no basis for adopting a different
rule in cases where it would work to the defendant’s
benefit.
More importantly, however, the panel majority below never addressed whether the Guideline at issue is
genuinely ambiguous after exhausting “all the traditional tools of construction.” Kisor, 139 S. Ct. at 2415
(quotation marks omitted).
Nor did it address
whether, if the Guideline is genuinely ambiguous, the
commentary is a “reasonable interpretation” of that
ambiguity, or “whether the character and context of
the agency interpretation entitles it to controlling
weight.” Id. at 2416 (quotation marks omitted). In-
36
stead, its holding was predicated entirely on its conclusion that deference did not depend on whether the
Guideline was ambiguous. See Pet. App. 22a-23a
(“having concluded that Stinson continues to” apply
unaffected by Kisor, “we readily conclude that Application Note 5(C) is owed controlling deference”). This
Court could therefore hold that Kisor applies to the
Guidelines commentary, then remand for the Court of
Appeals to conduct the appropriate analysis.
3. This case is just as ideal a vehicle to address
whether deference in criminal cases can ever be warranted. The panel majority never attempted to provide “its best independent judgment” of the meaning
of the Guideline under which Moses was sentenced.
Kisor, 139 S. Ct. at 2426 (Gorsuch, J. concurring in the
judgment). Instead, it delegated that judgment to the
Sentencing Commission, approved a sentence that
was six times longer than the sentence that would
have applied under the better reading of the Guideline, and subjected Moses to a ten-year sentence for
selling $40 worth of crack cocaine. This case exemplifies the harm to individual liberty that results from
reflexive deference in the criminal context.
37
CONCLUSION
The petition for a writ of certiorari should be granted
and the decision below reversed.
Respectfully submitted,
MARSHALL H. ELLIS
HORNTHAL, RILEY, ELLIS &
MALAND, LLP
301 East Main Street
Elizabeth City, NC 27909
(252) 335-0871
mellis@hrem.com
CATHERINE E. STETSON
Counsel of Record
WILLIAM E. HAVEMANN
DANIELLE DESAULNIERS
STEMPEL
MICHAEL J. WEST
HOGAN LOVELLS US LLP
555 Thirteenth Street, NW
Washington, DC 20004
(202) 637-5600
cate.stetson@hoganlovells.com
Counsel for Petitioner
AUGUST 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.