Amicus Curiae Brief — Lenair Moses, Petitioner v. United States

No. 22-163



,17+(

Supreme Court of the United States

_________________________

LENAIR MOSES,

Petitioner,

v.

UNITED STATES,

Respondent.

_________________________

On Petition for a Writ of Certiorari to the

U.S. Court of Appeals for the Fourth Circuit

AMICUS CURIAE BRIEF OF THE

NEW CIVIL LIBERTIES ALLIANCE

IN SUPPORT OF PETITIONER

CASEY B. NORMAN

MARK S. CHENOWETH

KARA M. ROLLINS

Counsel of Record

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

Kara.Rollins@NCLA.legal

October 20, 2022

Counsel for Amicus Curiae

i

QUESTIONS 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 such deference, so 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 to

commentary to the U.S. Sentencing Guidelines.

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.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

TABLE OF CONTENTS ............................................ ii

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

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

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

ARGUMENT ............................................................... 6

I. Kisor Modified All Forms of Seminole Rock

Deference ............................................................. 6

II. Increasing Criminal Sentences Based on

Deference Is Unconstitutional ............................ 9

A. Stinson’s Particular Outcome Did Not

Implicate the Rule of Lenity ...................... 10

B. Deference to Commentary of Unambiguous

Guidelines Violates Judicial Independence

and Due Process ......................................... 13

1. Deference Undermines Article III

Judicial Independence ........................... 13

2. Stinson Deference Violates Due Process

by Institutionalizing Judicial Bias ........ 17

CONCLUSION .......................................................... 19

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abramski v. United States,

573 U.S. 169, 191 (2014) .................................... 9, 12

Bifulco v. United States,

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

Bond v. United States,

564 U.S. 211 (2011)................................................ 16

Bowles v. Seminole Rock,

325 U.S. 410 (1945) ...................................................6

Bray v. Atalanta,

4 F. Cas. 37 (D.S.C. 1794) (No. 1,819)................... 10

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

393 U.S. 145 (1968)................................................ 17

Georgia v. Brailsford,

2 U.S. 415 (1793).................................................... 14

Guedes v. Bureau of Alcohol, Tobacco, Firearms &

Explosives,

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

In re Murchison,

349 U.S. 133 (1955)................................................ 18

Kisor v. Wilkie,

139 S. Ct. 2400 (2019)............................ 2, 5, 6, 7, 16

Liparota v. United States,

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

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ................................. 16

iv

Masterpiece Cake Shop, Ltd. v. Colo. Civil Rights

Comm’n,

138 S. Ct. 1719 (2018)............................................ 17

McBoyle v. United States,

283 U.S. 25 (1931).................................................. 12

Miller v. Johnson,

515 U.S. 900 (1995)................................................ 15

Mistretta v. United States,

488 U.S. 361 (1989) ............................................... 7, 8

Perez v. Mortgage Bankers Ass’n,

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

Prohibition del Roy,

12 Co. Rep. 63, 65 (1608) ....................................... 13

Skilling v. United States,

561 U.S. 358 (2010)................................................ 10

Stinson v. United States,

508 U.S. 36 (1993).............. 2, 3, 4, 6, 8, 9, 10, 17, 18

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

914 N.W.2d 21, 53 (Wisc. 2018) ............................ 17

The Julia,

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

Tumey v. Ohio,

273 U.S. 510 (1927)................................................ 19

United States v. Bass,

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

United States v. Burr,

25 F. Cas. 2 (C.C.D. Va. 1807) (No. 14,692) .......... 15

United States v. Campbell,

22 F.4th 438 (4th Cir. 2022) .......................... 7, 8, 16

v

United States v. Cingari,

952 F.3d 1301 (11th Cir. 2020)............................ 4, 5

United States v. Faison,

2020 WL 815699 (D. Md. Feb, 18, 2020) ............... 11

United States v. Havis,

907 F.3d 439 (6th Cir. 2018) ........................... 10, 15

United States v. Martinez,

602 F.3d 1166 (10th Cir. 2010).............................. 18

United States v. Mendoza-Figueroa,

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

United States v. Nasir,

17 F.4th 459 (3d Cir. 2021) ........ 4, 5, 7, 10, 11, 12, 13

United States v. Nasir,

982 F.3d 144 (3d Cir. 2020) .......................................3

United States v. Riccardi,

989 F.3d 476 (6th Cir. 2021) ......................................7

United States v. Santos,

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

United States v. Vargas,

45 F.4th 1083 (5th Cir. 2022).....................................4

United States v. Wiltberger,

18 U.S. 76 (1820)................................................ 5, 10

Whitman v. United States,

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

Yarborough v. Alvarado,

541 U.S. 652 (2004)................................................ 16

vi

Constitutional Provisions

U.S. Const. pmbl........................................................ 13

U.S. Const., art. III, § 1 .............................................. 14

Statutes

18 U.S.C. § 3553(b) .................................................... 16

Other Authorities

1 Records of the Federal Convention of 1787

(Max Farrand ed., Yale Univ. Press 1911) ........... 14

2 Records of the Federal Convention of 1787

(Nathaniel Gorham) .............................................. 14

A Discourse Upon the Exposicion & Understandinge

of Statutes

(Samuel E. Thorne ed. 1942) ................................. 11

James Iredell, To the Public,

N.C. Gazette (Aug. 17, 1786) ................................. 14

Livingston Hall, Strict or Liberal Construction of

Penal Statutes, 48 HARV. L. REV. 748 (1935) ....... 11

Philip Hamburger, Chevron Bias,

84 GEO. WASH. L. REV. 1187 (2016) ................. 17, 18

Philip Hamburger,

Law and Judicial Duty (2008) ........................ 13, 14

The Declaration of Independence (U.S. 1776) .......... 13

THE FEDERALIST NO. 78 ............................................. 14

1

INTEREST OF AMICUS CURIAE1

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

nonpartisan, nonprofit civil rights organization and

public-interest law firm. Professor Philip Hamburger

founded NCLA to challenge multiple constitutional

defects in the modern administrative state through

original litigation, amicus curiae briefs, and other

forms of advocacy.

The “civil liberties” of the organization’s name

include rights at least as old as the U.S. Constitution

itself, such as due process of law and the right to be

tried in front of impartial judges who provide their

independent judgments on the meaning of the law.

Yet these selfsame civil rights are also very

contemporary—and in dire need of renewed

vindication—precisely because executive agencies

and even the courts have neglected them for so long.

NCLA aims to defend civil liberties—primarily

by asserting constitutional constraints on the modern

administrative state. Although Americans still enjoy

a shell of their Republic, a very different sort of

government has developed within it—a type, in fact,

that the Constitution was designed to prevent. This

unconstitutional state within the Constitution’s

United States is the focus of NCLA’s concern.

1 Pursuant to Supreme Court Rule 37.6, both parties

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

authored this brief in whole or in part, and no person or entity,

other than NCLA and its counsel, made a monetary contribution

intended to fund the preparation and submission of this brief.

2

NCLA is particularly disturbed by the

widespread practice of extending judicial “deference”

to the United States Sentencing Commission’s

commentary on the U.S. Sentencing Guidelines. This

deference regime raises grave constitutional concerns

that the Supreme Court never considered in Stinson

v. United States, 508 U.S. 36 (1993)—and has not

addressed since.

As set forth below, several

constitutional infirmities arise when Article III judges

abdicate their duty of independent judgment and,

instead, “defer” to other branches’ views about how to

interpret criminal laws.

SUMMARY OF ARGUMENT

When this Court decided Kisor v. Wilkie, all

nine Justices agreed on the need to “reinforce” and

“further develop” the limitations on the deference that

courts owe to an administrative agency’s

interpretation of its own rules. 139 S. Ct. 2400, 2408,

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

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

2448-49 (Kavanaugh, J., concurring in judgment).

Kisor held that courts may defer to an agency’s

interpretation only if a regulation proves “genuinely

ambiguous” after a court has “exhaust[ed] all the

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

Prior to Kisor, courts had been deferring

“reflexive[ly]” to agencies’ regulatory interpretations,

without first conducting their own exhaustive textual

analysis like the Constitution requires. See ibid. As

the Court acknowledged in Kisor, this reflexive

deference was likely the result of the “mixed

messages” that the Court has sent in cases where it

3

has “applied Auer deference without significant

analysis of the underlying regulation[,]” or where the

Court has “given Auer deference without careful

attention to the nature and context of the

interpretation.” Id. at 2414.

Of all the mixed messages this Court has sent

about the appropriate role of agency deference, the

1993 decision in Stinson has been among the most

damaging given its application during criminal

sentencing. 508 U.S. at 38. In Stinson, the Court

ruled that courts must defer to the United States

Sentencing Commission’s commentary interpreting the

Sentencing Guidelines unless that commentary “is

inconsistent with, or a plainly erroneous reading of, that

guideline.” Ibid. Stinson held that such deference was

appropriate even if the interpretation “may not be

compelled by the guideline text.” Id. at 47.

Following Stinson, the courts of appeal began to

give “nearly dispositive weight” to the Commission’s

commentary over “the Guidelines’ plain text.” United

States v. Nasir, 982 F.3d 144, 177 (3d Cir. 2020) (en banc)

(Bibas, J., concurring in part), cert. granted and

remanded, 142 S. Ct. 56 (2021) (mem.); see also United

States v. Mendoza-Figueroa, 65 F.3d 691, 692-63 (8th

Cir. 1995) (en banc) (“Every court has agreed that the

Commission’s extensive statutory authority to fashion

appropriate sentencing guidelines includes the

discretion to include drug conspiracy offenses in the

category of offenses that warrant increased prison

terms for career offenders.”).

It is no coincidence that several courts of

appeals read Stinson as requiring reflexive

4

deference—they have relied on the explicit language

in Stinson. Take the Eleventh Circuit for example. To

this day, the Eleventh Circuit quotes Stinson for its

rule that “the commentary for a guideline remains

authoritative ‘unless it violates the Constitution or a

federal statute, or is inconsistent with, or a plainly

erroneous reading of, that guideline.’” United States

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

(quoting Stinson, 508 U.S. at 38), cert. denied, 141 S.

Ct. 835 (2020). Commission commentary loses its

“authoritative … status” in the Eleventh Circuit only

“if it is ‘inconsistent with, or a plainly erroneous

reading of, that guideline.’” Ibid. (quoting Stinson,

508 U.S. at 38). With no inquiry at all concerning a

Guideline’s ambiguity, Stinson deference is reflexive

by its very terms.

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

have recognized that a strict reading of Stinson is

inconsistent with this Court's modern administrativelaw jurisprudence, the Sentencing Commission’s legal

authority, and the Constitution. The majority of the

other circuits, however, adhere to the outdated language

in Stinson and refuse to reconsider their circuit

precedent in light of Kisor. But see United States v.

Vargas, 45 F.4th 1083 (5th Cir. 2022) (ordering rehearing

en banc in a Stinson deference case). Further percolation

will not resolve a dispute that stems from this Court’s

own mixed signals.

Moreover, this Court’s guidance is needed to

resolve the “broader problem” that arises once the other

circuits awake “from [their] slumber of reflexive

deference.” United States v. Nasir, 17 F.4th 459, 472 (3d

Cir. 2021) (en banc) (Bibas, J., concurring). Kisor made

5

clear that courts must exhaust the “traditional tools of

construction” before deferring to an agency. 139 S. Ct. at

2415.

The rule of lenity is a traditional tool of

construction “perhaps not much less old than

construction itself” that protects core liberties against

government intrusion. United States v. Wiltberger, 18

U.S. 76, 95 (1820). The courts of appeals, however,

are starkly divided on whether lenity applies before

deference, or whether it even applies at all. Compare

Nasir, 17 F.4th at 474 (Bibas, J., concurring) (“A key

tool in that judicial toolkit is the rule of lenity.”), with

Cingari, 952 F.3d at 1310-11 (“cast[ing] doubt” on

whether lenity applies before Stinson deference).

Again, this circuit split is a result of the Court’s

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

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

by Thomas, J., statement respecting denial of

certiorari) (collecting cases to demonstrate that this

Court’s anti-lenity statements “contradict[] the many

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

criminal and civil applications, the rule of lenity

governs its interpretation in both settings”).

Mr. Moses’ petition presents the Court with a

critical opportunity to clarify once and for all that

courts do not owe deference to Commission

commentary that expands the Sentencing Guidelines

and/or makes sentences harsher. Each passing Term,

district courts in circuits across the country

systematically violate the due-process rights of criminal

defendants by applying Stinson deference to increase the

Sentencing Guideline range approved by Congress. Even

absent ambiguity, the application of reflexive deference

in criminal cases, in particular, deprives criminal

6

defendants of due process, gravely endangers the

individual liberty of American citizens, and distorts the

independent judicial office enshrined in Article III of

the Constitution. With the liberty of so many at stake,

there is no excuse to wait.

ARGUMENT

I.

KISOR MODIFIED ALL FORMS OF SEMINOLE

ROCK DEFERENCE

In Stinson, the Supreme Court extended Seminole

Rock deference to the U.S. Sentencing Commission’s

commentary interpreting the U.S. Sentencing

Guidelines, thus requiring courts to defer unless the

commentary “run[s] afoul of the Constitution or a federal

statute” or is “plainly erroneous or inconsistent” with the

Guidelines. 508 U.S. at 47 (quoting Bowles v. Seminole

Rock, 325 U.S. 410, 414 (1945)). Decisions like Stinson

“[we]re legion” for 60 years, as courts applied Seminole

Rock deference (eventually known as Auer deference) to

various circumstances, often without considering

whether the challenged regulation was ambiguous. See

Kisor, 139 S. Ct. at 2414 & n.3.

Every Justice in Kisor agreed that the Court

needed to “reinforce” and “further develop” the

limitations on the deference that courts owe to an

agency’s interpretation of its own rules. Id. at 2408,

2415; id. at 2424 (Roberts, C.J., concurring); id. at

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

2448-49 (Kavanaugh, J., concurring in judgment).

The Court “cabined Auer’s scope in varied and critical

ways” to “maintain[] a strong judicial role in

interpreting rules.” Id. at 2418. Following Kisor,

7

courts may defer to an agency’s interpretation of its

own regulation only by (1) exhausting their

interpretive toolkit and concluding that the text is

“genuinely ambiguous”; (2) determining that the agency

interpretation is “reasonable”; and (3) conducting an

“independent inquiry” confirming that “the character

and context of the agency interpretation entitles it to

controlling weight.” Id. at 2415-16.

Kisor’s refinement of the Seminole Rock/Auer

framework requires courts to “turn to the ‘traditional

tools’ of statutory construction to determine if [a

Guideline] is ‘genuinely ambiguous’” before deferring to

Commission commentary. United States v. Campbell,

22 F.4th 438, 445 (4th Cir. 2022); see also Nasir, 17

F.4th at 469-72; United States v. Riccardi, 989 F.3d 476,

484-86 (6th Cir. 2021).

In the decision below, the divided Fourth Circuit

panel ruled that Kisor’s refinement of Seminole

Rock/Auer deference is irrelevant because Stinson

adopted Seminole Rock deference by analogy only, and

its imperfect fit to the Commission’s unique position in

our constitutional scheme means that courts must apply

Stinson reflexively, despite Kisor. Pet. App. 18a. But the

Commission’s “unusual … structure and authority,”

Mistretta v. United States, 488 U.S. 361, 412 (1989),

render deference less appropriate—not more so. Indeed,

a separate Fourth Circuit panel recognized as much in

its unanimous decision in Campbell—issued 12 days

before the Moses panel majority filed a directly

conflicting ruling—which explicitly concluded that the

framework articulated in Kisor applies to the

Commission’s commentary to the Sentencing Guidelines.

22 F.4th at 444-45 (stating that Kisor “renders [the

8

Court’s] conclusion indisputable”); see also Pet. App.

25a (King, J., dissenting in part and concurring in the

judgment) (“I am entirely persuaded of the correctness

of the analysis set forth by Judge Motz in the

Campbell decision”). And, as the Campbell panel

recognized, the concerns that Kisor identified “are even

more acute in the context of the Sentencing Guidelines,

where individual liberty is at stake.” 22 F.4th at 446.

The Commission and its Guidelines are

constitutional only because: (1) the Commission

promulgates them and any amendments thereto through

notice-and-comment rulemaking; and (2) Congress

reviews every Guideline before it takes effect. Mistretta,

488 U.S. at 393-94. By contrast, the Sentencing Reform

Act permits Commission commentary by implication

only, and it is not subject to congressional review or

notice and comment. See Stinson, 508 U.S. at 41. Some

courts that have declined to apply Kisor to the Guidelines

commentary downplay these legal distinctions based on

Commission assurances that its “practice” is to

“generally” put commentary through “the notice-andcomment and congressional-submission procedure.” Pet.

App. 16a. But neither the Commission’s intentions nor

its procedures elevate commentary to Guidelines status

as a matter of law. Rather, “the Commission acts

unilaterally” when it issues commentary, “without that

continuing congressional role so vital to the Sentencing

Guidelines’ constitutionality.” Campbell, 22 F.4th at

446. Hence, holdings that increase the scope of the

Guidelines “would [impermissibly] ‘allow circumvention

of the checks Congress put on the Sentencing

Commission[.]’” Id. (citation omitted).

9

Continued reliance on Stinson’s requirement of

mandatory deference to Guidelines commentary without

consideration of Kisor’s refinements undermines the

judiciary’s crucial constitutional role in criminal

sentencing. Not only that, but it will also inevitably

deprive countless criminal defendants of their liberty and

right to due process. “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).

II.

INCREASING CRIMINAL SENTENCES BASED ON

DEFERENCE IS UNCONSTITUTIONAL

It is plainly unconstitutional to require courts

to increase unambiguous criminal sentences on the

basis of deference to the Commission’s commentary.

Stinson does not—and cannot—apply when deference

to commentary would “run afoul of the Constitution.”

Stinson, 508 U.S. at 47. The rule of lenity, principles

of due process, and the independence of the judicial

office all require courts to interpret the Guidelines for

themselves, without deference to the Commission’s

interpretation.

Lower-court judges are openly divided about

how Kisor limited Stinson and how rigorously judges

must analyze the Guidelines’ text before deferring to

commentary. Such a disparity in how judges interpret

text would be unacceptable for any federal rules that

require uniformity, but it is singularly inexcusable in

the case of criminal sentencing, when liberty is at

stake. The very purpose of the Guidelines is to

promote uniformity in sentencing.

And the

Constitution requires that judges uniformly interpret

10

any ambiguity in the Guidelines in the defendant’s

favor.

A. Stinson’s Particular Outcome Did Not

Implicate the Rule of Lenity

In contrast to Stinson, where the commentary

at issue favored a more lenient sentence, 508 U.S. at

47-48, deference to the Commission in this case

required the court to impose a stricter sentence on Mr.

Moses, so “alarm bells should be going off.” United

States v. Havis, 907 F.3d 439, 450 (6th Cir. 2018)

(Thapar, J., concurring). “[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). As six Third Circuit judges

recognized, “[p]enal laws pose the most severe threats

to life and liberty, as the Government seeks to brand

people as criminals and lock them away.” Nasir, 17

F.4th at 473 (Bibas, J., concurring). The Court in

Stinson, however, had no occasion to consider what

role lenity would play in its deference regime and,

thus, did not grapple with the constitutional issues

inherent when Stinson deference applies to increase a

criminal penalty.

The rule of lenity dictates that any “ambiguity

concerning the ambit of criminal statutes should be

resolved in favor of lenity.” Skilling v. United States,

561 U.S. 358, 410 (2010). This concept is not new.

Rather, the rule of lenity is one of the original tools of

statutory construction. See Wiltberger, 18 U.S. at 95;

see also Bray v. Atalanta, 4 F. Cas. 37, 38 (D.S.C.

1794) (No. 1,819) (“a penal law [] must be construed

11

strictly”). Early fifteenth century jurist William

Paston abided by the maxim that “a penalty should

not be increased by interpretation.” A Discourse Upon

the Exposicion & Understandinge of Statutes (Samuel

E. Thorne ed. 1942) (“[W]hen the law is penall, for in

those it is true that Paston saiethe, Poenas

interpretation augeri non debere[.]”). In simple terms,

“[t]he rule of lenity requires ambiguous criminal laws

to be interpreted in favor of the defendants subjected

to them.” United States v. Santos, 553 U.S. 507, 514

(2008).

Lenity “applies not only to interpretations of

the substantive ambit of criminal prohibitions, but

also to the penalties they impose.” Bifulco v. United

States, 447 U.S. 381, 387 (1980). In fact, lenity “first

arose to mitigate draconian sentences.” Nasir, 17

F.4th at 473 (Bibas, J., concurring) (citing Livingston

Hall, Strict or Liberal Construction of Penal Statutes,

48 HARV. L. REV. 748, 749-51 (1935)).

Lenity applies with equal force to the

Guidelines—which “exert a law-like gravitational pull

on sentences”—requiring that courts resolve any

ambiguities in a defendant’s favor. Nasir, 17 F.4th at

474 (Bibas, J., concurring). Moreover, any increase in

criminal sentencing must comport with due process.

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

every minute that is added to a defendant’s sentence.”

United States v. Faison, 2020 WL 815699, *1 (D. Md.

Feb, 18, 2020). Indeed, for a defendant, “every day,

month and year that was added to the ultimate

sentence will matter. … [T]he difference between

probation and fifteen days may determine whether

the defendant is able to maintain his employment and

12

support his family.” Ibid. In any event, “the

presumption of liberty remains crucial to guarding

against overpunishment.”

Nasir, 17 F.4th at 474

(Bibas, J., concurring). For this reason, among others,

courts must vigilantly attend to the rule of lenity and its

animating principles. Id.; see also Abramski, 573 U.S.

at 191 (“[W]e have never held that the Government’s

reading of a criminal statute is entitled to any

deference.”).

Three “core values of the Republic” compel the

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

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

preference for liberty.” Nasir, 17 F.4th at 473 (Bibas,

J., concurring). 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 precludes criminal punishment when

Congress did not provide a fair warning through clear

statutory language. See id. at 27 (due process requires

the law to draw as clear a line as possible). Lenity

also preserves the separation of powers: the

legislature criminalizes conduct and sets statutory

penalties, the executive prosecutes crimes and can

recommend a sentence, and the judiciary imposes

sentences within the applicable statutory framework.

United States v. Bass, 404 U.S. 336, 348 (1971). In

this way, 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

13

“perhaps most importantly,” “‘lenity expresses our

instinctive distaste against men languishing in prison

unless the lawmaker has clearly said they should.’”

Nasir, 17 F.4th at 473 (Bibas, J., concurring) (citation

omitted). Indeed, by promoting liberty, the rule of

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.).

B. Deference to Commentary of

Unambiguous Guidelines Violates

Judicial Independence and Due Process

1. Deference Undermines Article III

Judicial Independence

Judicial independence has been a touchstone of

legitimate governance at least since English judges

resisted King James I’s insistence that “[t]he King

being the author of the Lawe is the interpreter of the

Lawe.” See Philip Hamburger, Law and Judicial

Duty, 149-50, 223 (2008). The judges insisted that,

although they exercised the judicial power in the

name of the monarch, the power rested solely with

them. Prohibition del Roy, 12 Co. Rep. 63, 65 (1608).

During the uprising against tyranny, the

American Declaration of Independence objected to

judges “dependent on [King George III’s] will alone.”

The Declaration of Independence para. 3 (U.S. 1776).

The Founders then cast their first substantive vote at

the Constitutional Convention of 1787 to create a

government that separated power among three coequal branches.

See 1 Records of the Federal

Convention of 1787, 30-31 (Max Farrand ed., Yale

14

Univ. Press 1911). The separation of governmental

powers preserves liberty, in part, because each branch

jealously checks the other branches’ attempts to shift

the constitutional balance of power.

No branch is more vital to protecting liberty

than the judiciary. An independent judiciary serves

as our constitutional backstop and ensures that the

political branches cannot diminish constitutional

protections. Article III adopted the common-law

tradition of an independent judicial office, secured by

life tenure and undiminished salary. U.S. Const., art.

III, § 1. To hold this office, an Article III judge swears

an oath to the Constitution and is duty-bound to

exercise his office independently. See Hamburger,

supra at 507-12.

The judicial office includes a duty of

independent judgment. See James Iredell, To the

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

duty of judges as “[t]he duty of the power”). Through

the independent judicial office, the Founders ensured

that judges would not administer justice based on

someone else’s interpretation of the law. See 2

Records of the Federal Convention of 1787, 79

(Nathaniel Gorham); THE FEDERALIST No. 78

(Alexander Hamilton) (“The interpretation of laws is

the proper and peculiar province of the courts.”). This

obligation of independence is reflected in the opinions

of the founding era’s finest jurists. See, e.g., Georgia

v. Brailsford, 2 U.S. (2 Dall.) 415, 416 (1793) (Iredell,

J., dissenting) (“It is my misfortune to dissent … but I

am bound to decide, according to the dictates of my

own judgment.”); The Julia, 14 F. Cas. 27, 33 (C.C.D.

Mass. 1813) (No. 7,575) (Story, J.) (“[M]y duty

15

requires that whatsoever may be its imperfections, my

own judgment should be pronounced to the parties.”);

United States v. Burr, 25 F. Cas. 2, 15 (C.C.D. Va.

1807) (No. 14,692) (Marshall, J.) (“[W]hether [the

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

my own judgment, and in the performance of my duty

I can know no other guide.”).

Judicial independence, as a duty and

obligation, persists today.

This principle is so

axiomatic, in fact, that it seldom appears in legal

argument; the mere suggestion that a judge might

breach his or her duty of independent judgment is a

scandalous insinuation. But that is exactly what

deference regimes like Stinson require: judicial

dependence on a non-judicial entity’s interpretation of

the law.2

Faithful application of Stinson deference

requires judges to abdicate the duty of their office by

forgoing their independent judgment in favor of an

agency’s legal interpretation. See Perez v. Mortgage

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

concurring in judgment) (deference requires courts “to

‘decide’ that the text means what the agency says”).

This diminishes the judicial office and with it, a key

structural safeguard that the Framers erected as aa

bulwark against tyranny. Cf. Miller v. Johnson, 515

U.S. 900, 922-23 (1995) (holding that deferring to an

2 Those judges who serve on the Commission are not acting

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

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

(Thapar, J.).

16

agency’s statutory interpretation impermissibly

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

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

This is especially true when “a sentence enhancement

potentially translates to additional years or decades

in federal prison,” as “we cannot forget that ‘[t]he

structural principles secured by the separation of

powers protect the individual as well.’” Campbell, 22

F.4th at 446-47 (quoting Bond v. United States, 564

U.S. 211, 222 (2011)). “In such circumstances, ‘a court

has no business deferring to any other reading, no

matter how much the [Government] insists it would

make more sense.’” Id. (quoting Kisor, 139 S. Ct. at

2415).

Even when Congress has tasked an agency

with promulgating binding rules or guidelines, it

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

any case or controversy about the meaning and

application of those agency-made provisions.

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803). The duty of independent judgment is the very

office of an Article III judge; Stinson cannot lawfully

require judges to abdicate this duty. Cf. Yarborough

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

the “substantial element of judgment” that federal

judges must exercise “when applying a broadly

written rule to a specific case”). The Commission’s

opinion of how to best interpret its guidelines deserves

no more weight than the heft of its persuasiveness.

See, e.g., 18 U.S.C. § 3553(b) (allowing but not

requiring courts to “consider” the “official commentary

of the Sentencing Commission” when deciding

whether to depart from a guidelines range); cf.

TetraTech, Inc. v. Wisc. Dep’t of Revenue, 914 N.W.2d

17

21, 53 (Wisc. 2018) (“‘Due weight’ is a matter of

persuasion, not deference.”).

2. Stinson Deference Violates Due Process

by Institutionalizing Judicial Bias

Reflexive

deference

to

Commission

commentary also jeopardizes judicial impartiality.

Com. Coatings Corp. v. Cont’l Cas. Co., 393 U.S. 145,

150 (1968) (judicial bodies “not only must be unbiased

but also must avoid even the appearance of bias”);

Masterpiece Cake Shop, Ltd. v. Colo. Civil Rights

Comm’n, 138 S. Ct. 1719, 1734 (2018) (Kagan, J.,

concurring) (the Constitution forbids proceedings

“infected by … bias”).

Judicial bias need not exist at a personal level

to violate due process—it can also be institutional. In

fact, institutionalized judicial bias is more pervasive,

as it systematically infects the fairness of the legal

system as a whole rather than just an individual party

before a particular judge.

Stinson deference

institutionalizes bias by requiring courts to “defer” to

the government’s legal interpretation in violation of a

defendant’s right to due process of law. Cf. Philip

Hamburger, Chevron Bias, 84 GEO. WASH. L. REV.

1187 (2016). Rather than exercise their own judgment

about what the law is, judges under Stinson defer as

a matter of course to the judgment of one of the

litigants before them: the federal government. The

government litigant wins merely by showing that its

preferred interpretation of the commentary “is not

plainly erroneous or inconsistent with” the

Guidelines. Stinson, 508 U.S. at 47 (cleaned up); see

also United States v. Martinez, 602 F.3d 1166, 1174

18

(10th Cir. 2010) (deferring so long as the commentary

“can be reconciled with the language of [the]

guideline”).

A judge cannot simply find the

defendant’s reading more plausible or think the

government’s reading is wrong—the government

must be plainly wrong.

Most judges recognize that personal bias

requires recusal. It is equally inappropriate for a

judge to decide a case based on a deference regime

that institutionalizes bias by requiring judges to favor

the legal position of one of the litigating parties: the

government. See In re Murchison, 349 U.S. 133, 136

(1955) (reasoning that the “stringent” due-process

requirement of impartiality may require recusal by

“judges who have no actual bias and who would do

their very best to weigh the scales of justice equally

between contending parties”).

Reliance on Stinson institutionalizes bias by

continuing to “defer” to the government’s legal

interpretation in violation of a defendant’s right to

due process. Cf. Hamburger, Chevron Bias, supra. In

short, rather than exercising their own judgment

about the law, Kisor requires judges to defer to the

judgment of the government litigant, so long as the

commentary “is not plainly erroneous or inconsistent

with” the Guidelines. Stinson, 508 U.S. at 47 (cleaned

up).

No rationale can defend a practice that thus

weights the scales in favor of the most powerful of

parties—a government litigant——and commands

systematic bias in favor of the government’s preferred

interpretations of the Sentencing Guidelines.

19

Doctrines that call for government-litigant bias, such

as Stinson deference, thus patently deny due process

to criminal defendants by favoring the government

prosecutor’s position. Tumey v. Ohio, 273 U.S. 510,

532 (1927).

It is time for this Court to reconsider Stinson,

reject the “deference” doctrine that continues to

compromise the judiciary while depriving countless

criminal defendants of their constitutional rights, and

allow conscientious judges to uphold their

constitutional oath. Deference has no role in criminal

sentencing, where the government may deprive a

defendant of liberty only if all three branches agree

separately and independently that the sanction is

justified.

CONCLUSION

For the foregoing reasons, we respectfully urge

the Court to grant Mr. Moses’s petition.

Respectfully,

/s/ Kara M. Rollins

KARA M. ROLLINS

Counsel of Record

CASEY B. NORMAN

MARK S. CHENOWETH

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

Kara.Rollins@NCLA.legal

Counsel for Amicus Curiae