Amicus Curiae Brief — Anthony Lomax, Petitioner v. United States

No. 22-644

In the Supreme Court of the United States

__________

ANTHONY LOMAX

Petitioner,

v.

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh

Circuit

__________

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

__________

February 10, 2023

Clark M. Neily III

Counsel of Record

Gregory Mill

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 425-7499

cneily@cato.org

i

QUESTION PRESENTED

Whether the limits on agency deference announced in Kisor constrain the deference that courts

may accord to the commentary to the Sentencing

Guidelines.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... I

TABLE OF CONTENTS ........................................... II

TABLE OF AUTHORITIES .................................... III

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

SUMMARY OF ARGUMENT.................................... 1

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

I.

KISOR RESTRICTED THE APPLICATION

OF

AUER

DEFERENCE

AND

INVALIDATED ANY JUSTIFICATION

FOR STINSON. ................................................. 3

II.

THIS IS A PRIME OPPORTUNITY FOR

THE COURT TO PROVIDE GUIDANCE

ON THE RULE OF LENITY’S PLACE IN

THE POST-KISOR FRAMEWORK. ................. 6

A.

This Court Has Provided Conflicting

Guidance for the Interaction of the

Rule of Lenity with Deference to

Agency Interpretations. ........................ 8

B.

The Lower Courts Are Similarly

Divided on the Application of

Lenity................................................... 12

C.

The Rule of Lenity Should Apply to

Interpretations of the Sentencing

Guidelines............................................ 13

CONCLUSION ......................................................... 17

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abramski v. United States, 573 U.S. 169

(2014) ...................................................................... 8

Aposhian v. Barr, 958 F.3d 969 (10th Cir.

2020)................................................................ 12, 13

Aposhian v. Wilkinson, 989 F.3d 890 (10th

Cir. 2021) .............................................12, 13, 14, 15

Auer v. Robbins, 519 U.S. 452 (1997) ........................ 1

Babbitt v. Sweet Home Chapter of Cmtys. for a

Great Or., 515 U.S. 687 (1995) ............................... 9

Bowles v. Seminole Rock & Sand Co., 325 U.S.

410 (1945) ............................................................... 1

Crandon v. United States, 494 U.S. 152 (1990) ...... 14

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

2017)...................................................................... 12

Diamond Roofing Co. v. Occupational Safety

& Health Rev. Comm’n, 528 F.2d 645 (5th

Cir. 1976) .............................................................. 12

Ehlert v. United States, 402 U.S. 99 (1971) .............. 9

Esquivel-Quintana v. Lynch, 810 F.3d 1019

(6th Cir. 2016)................................................. 10, 12

Gallardo v. Barr, 968 F.3d 1053 (9th Cir.

2020)........................................................................ 9

Guedes v. Bureau of Alcohol, Tobacco,

Firearms & Explosives, 140 S. Ct. 789

(2020) ................................................................ 9, 15

iv

Guedes v. Bureau of Alcohol, Tobacco,

Firearms & Explosives, 920 F.3d 1 (D.C. Cir.

2019).................................................................. 9, 13

Johnson v. United States, 576 U.S. 591 (2015) ....... 13

Kasten v. Saint-Gobain Performance Plastics

Corp., 563 U.S. 1 (2011) ....................................... 14

Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ..1, 2, 3, 4, 5, 7,

11, 14

Leocal v. Ashcroft, 543 U.S. 1 (2004) ......................... 8

Mistretta v. United States, 488 U.S. 361 (1989) ...... 16

Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967 (2005) .................... 10

Shular v. United States, 140 S. Ct. 779 (2020) ....... 11

Stinson v. United States, 508 U.S. 36 (1993) 1, 3, 5, 6,

7

The Enterprise, 8 F. Cas. 732 (C.C.D.N.Y.

1810) (No. 4499).................................................... 15

United States v. Apel, 571 U.S. 359 (2014) ............... 8

United States v. Bass, 404 U.S. 336 (1971) ............. 16

United States v. Davis, 139 S. Ct. 2319 (2019) ... 6, 10

United States v. Havis, 907 F.3d 439 (6th Cir.

2018)................................................................ 12, 14

United States v. Kanchanalak, 192 F.3d 1037

(D.C. Cir. 1999) ..................................................... 13

United States v. Kozminski, 487 U.S. 931

(1988) .............................................................. 14, 15

United States v. Lanier, 520 U.S. 259 (1997) .......... 15

v

United States v. Moss, 872 F.3d 304 (5th Cir.

2015)...................................................................... 12

United States v. Nasir, 17 F.4th 459 (3d Cir.

2021).................................................................. 2, 12

United States v. Phifer, 909 F.3d 372 (11th

Cir. 2018) ........................................................ 10, 12

United States v. R. L. C., 503 U.S. 291 (1992) . 10, 13,

14, 16

United States v. Wiltberger, 18 U.S. (5 Wheat.)

76 (1820) ................................................... 11, 15, 16

Whitman v. United States, 574 U.S. 1003

(2014) ................................................................ 9, 10

Yi v. Fed. Bureau of Prisons, 412 F.3d 526 (4th

Cir. 2005) .............................................................. 13

Other Authorities

U.S. Sent’g Guidelines Manual § 1B1.7 (U.S.

Sent’g Comm’n 1987) .............................................. 6

United States Sentencing Commission, Rules

of Practice and Procedure (as amended Aug.

18, 2016) ................................................................ 16

1

INTEREST OF AMICUS CURIAE1

The Cato Institute, founded in 1977, is a nonpartisan public policy research foundation dedicated to advancing the principles of individual liberty, free markets, and limited government. Cato’s Robert A. Levy

Center for Constitutional Studies was established in

1989 to promote the principles of limited constitutional government that are the foundation of liberty.

Toward those ends, Cato publishes books and studies,

conducts conferences, produces the annual Cato Supreme Court Review, and files amicus briefs.

This case is of central concern to Cato because it

involves an extra-legislative power to make law-like

interpretations that can cost people years of freedom.

SUMMARY OF ARGUMENT

In Kisor v. Wilkie, 139 S. Ct. 2400 (2019), this

Court preserved some form of judicial deference to administrative agencies’ interpretations of their own

regulations, as previously recognized in Auer v. Robbins, 519 U.S. 452 (1997), Bowles v. Seminole Rock &

Sand Co., 325 U.S. 410 (1945), and, importantly here,

in Stinson v. United States, 508 U.S. 36 (1993). The

Kisor Court placed restraints on so-called Auer deference by making clear the limited circumstances in

which deference is warranted and explaining the

steps courts must take before applying it. Kisor, 139

S. Ct. at 2420. The lower courts’ application of these

doctrinal developments would reveal whether the Kisor majority was correct that the doctrine simply

1 Rule 37 statement: All parties were timely notified to the

filing of this brief. Further, no party’s counsel authored this brief

in any part and amicus alone funded its preparation and submission.

2

needed tightening or was instead completely beyond

repair as the dissent maintained.

In Kisor, this Court instructed lower courts to

withhold deference to an agency’s interpretation of its

own regulations unless the regulation is “genuinely

ambiguous” after exhausting all “traditional tools of

construction.” Kisor, 139 S. Ct. at 2415. But that rule

is incompatible with this Court’s 1993 decision in

Stinson, which required deference to the Sentencing

Commission’s commentary to its Sentencing Guidelines even when the Guidelines were unambiguous.

The result of that decision was largely to put lower

courts in a “slumber of reflexive deference” to the commentary. United States v. Nasir, 17 F.4th 459, 472 (3d

Cir. 2021) (en banc) (Bibas, J., concurring). The present case implicates an ongoing discussion and debate

among the courts of appeals in the wake of Kisor regarding a key question: whether Kisor’s limitations on

Auer deference apply to the strong level of deference

called for in Stinson.

This case presents a prime opportunity for the

Court to provide much-needed guidance to the lower

courts on that divisive question. Here, the Seventh

Circuit affirmed a substantial increase in Anthony

Lomax’s sentencing range solely because Guidelines

commentary said it should. The court put little effort

into analyzing the text of the Guidelines itself. Such

“reflexive deference” is incompatible with this Court’s

holding in Kisor.

Moreover, the petition presents the opportunity

for this Court to resolve a larger problem that has

plagued doctrines of deference to agency interpreta-

3

tions of law more generally: namely, whether in criminal cases courts should apply the rule of lenity to otherwise ambiguous statutes and regulations or instead

give deference to agencies’ interpretations of such provisions. The Court’s command to exhaust all “traditional tools of construction” before granting deference

to an agency’s interpretation would seem to preclude

deference to an agency when the rule of lenity is otherwise applicable—the rule of lenity is, after all, a

longstanding tool of construction. E.g., Kisor, 139 S.

Ct. at 2415. Unfortunately, lower courts remain divided on that important question, and this case provides the Court with an opportunity to expand upon

its rationale in Kisor and clarify that lenity should

come before deference to agencies’ interpretations of

their regulations in the criminal setting.

ARGUMENT

I.

KISOR RESTRICTED THE APPLICATION

OF AUER DEFERENCE AND INVALIDATED ANY JUSTIFICATION FOR STINSON.

Stinson, which was the foundation for the Seventh

Circuit’s holding here, made clear that it was applying Auer deference. 508 U.S. at 45. After considering

alternatives—including analogizing the commentaries to statements of intent and agency interpretation of statutes—Justice Kennedy’s unanimous opinion concluded that the deference the Court would give

to the sentencing-guideline commentaries was the

4

same that it customarily gave to agency interpretations of regulations. Id.

The commentaries are agency interpretations subject to a level of deference that needs to be reevaluated

in the light of Kisor. While this Court explicitly declined to jettison Auer deference in Kisor, it didn’t

leave the doctrine entirely intact either, at least not

as the Court has employed it in prior cases. 139 S. Ct.

at 2448 (Kavanaugh, J., concurring in the judgement)

(noting that courts “rigorously applying” Kisor

“should lead in most cases to” them withholding Auer

deference to agency interpretations). Kisor restricted

Auer by laying out several preconditions that courts

must find before deference may be applied. Id. at

2414–18. The result of Kisor’s version of Auer deference, as Justice Gorsuch described it, is to make Auer

subject to the same two-step structure as Chevron—

beginning with the discernment of ambiguity, and

then, only if genuine ambiguity is found, asking

whether the agency’s determination is reasonable. Id.

at 2448 (Gorsuch, J., concurring in the judgement).

The Court acknowledged that it has given confusing

guidance and that some cases have not observed these

preconditions. Id. at 2414. Because “the Court has

given Auer deference without careful attention to the

nature and context of the interpretation,” some Auerbased rulings must have been set aside by Kisor. Id.

Stinson is one of them.

In establishing preconditions for Auer deference, Kisor effectively prescribed the order in which courts

must consider sources of legal authority and interpre-

5

tative tools when a question of regulatory interpretation arises. Id. A court must first consider the text of

the regulation in question. Next come the canons of

interpretation and other normal interpretive aids,

then consideration of the relevance of the interpreting

agency’s expertise to the question at hand. Finally,

there is a potential inquiry into whether the agency

has offered a reasonable and authoritative interpretation. Id. at 2414–19. If these conditions are met,

Auer deference can be applied to the interpretation of

the agency.

A court may not move beyond the text unless it can

find a genuine material ambiguity. Nor is it enough

for the regulation to be ambiguous upon initial inspection. A court must employ the full range of normal interpretative tools, including dictionaries and all the

relevant traditional canons, before declaring a bona

fide ambiguity. Id. at 2415. If, at that stage, a court

does not find any such ambiguity, it need not look to

any other material, nor should other materials color

its discernment of ambiguity. The modified Auer analysis is thus similar to the deference given to agency

statutory interpretations under Chevron, with Kisor

having removed any exceptional deference given to

regulatory interpretations. Id. at 2416.

Contrary to all the above, Stinson looked first to the

agency interpretation: the commentaries. The Sentencing Commission’s commentary can govern, the

Court said, unless it “is inconsistent with, or a plainly

erroneous reading of” the guidelines themselves. Stinson, 508 U.S. at 38. More than just a useful interpre-

6

tation, the Court in Stinson seemed to regard the commentaries as a binding expression of law when it said:

“Failure to follow such commentary could constitute

an incorrect application of the guidelines, subjecting

the sentence to possible reversal.” Id. at 43 (quoting

U.S. Sent’g Guidelines Manual § 1B1.7 (U.S. Sent’g

Comm’n 1987)).

Whereas this Court in Kisor held that a court should

not find a regulation to be ambiguous merely because

it can’t be deciphered on first reading, Stinson doesn’t

even require a first regulatory reading, at least not

before bringing in the commentaries. Id. Stinson

treats the commentaries as presumptively ambiguous

unless they can be shown to be materially clear in a

way that disfavors the interpretation made by the

Sentencing Commission’s guidelines. Id. at 43–44.

Stinson is incompatible with Kisor, reversing the order of consideration of authorities. Under Stinson,

there will be fewer cases where an agency interpretation will be found to be plainly inconsistent with a regulation than under Kisor. Even unambiguous guidelines could be supplemented in various ways by

agency interpretations under the Stinson approach.

That type of super-deference is simply unwarranted

and ripe for this Court’s correction.

II.

THIS IS A PRIME OPPORTUNITY FOR

THE COURT TO PROVIDE GUIDANCE ON

THE RULE OF LENITY’S PLACE IN THE

POST-KISOR FRAMEWORK.

7

This case also gives the Court the ability to address the rule of lenity’s place in the Post-Kisor framework. The rule of lenity provides “that ambiguities

about the breadth of a criminal statute should be resolved in the defendant’s favor.” United States v. Davis, 139 S. Ct. 2319, 2333 (2019). Between the rulings

in Stinson and Kisor, however, the heightened deference that was owed to the Guidelines commentary arguably precluded the use of the rule of lenity when the

Guidelines were ambiguous but the commentary was

on point.2 See Stinson, 508 U.S. at 38. But now that

an agency’s interpretation of its own regulations can

only receive deference after a court has made an independent determination that the regulation is still

“genuinely ambiguous” even after exhausting “all the

‘traditional tools’ of construction,” the rule of lenity—

which is certainly an historical tool of construction—

should apply to ambiguous Sentencing Guidelines before giving deference to the agency commentary. See

Kisor, 139 S. Ct. at 2415; id. at 2448 (Gorsuch, J., concurring in the judgment) (noting that the tools of construction “include all sorts of tie-breaking rules for resolving ambiguity even in the closest cases”); id. at

2448 (Kavanaugh, J., concurring in the judgment) (“If

a reviewing court employs all of the traditional tools

of construction, the court will almost always reach a

2 By itself, Stinson may not necessarily preclude application

of lenity. In Stinson, the commentary at issue favored the defendant, which means deference to the commentary and the rule

of lenity were not in conflict. However, this Court’s phrasing of

the rule of deference was not limited to situations in which the

commentary’s interpretation benefited the defendant. As such,

in Stinson, this Court left open the question whether deference

or lenity would take precedence when the commentary was unfavorable to the defendant.

8

conclusion about the best interpretation of the regulation at issue.”).

Unfortunately, the Court’s treatment of lenity and

how it interacts with the doctrine of deference to

agency interpretations generally has engendered disagreement among the lower courts, which are in conflict about how to apply the rule of lenity when agencies are interpreting statutes or their own regulations. This case presents a timely opportunity to resolve that confusion by making clear that genuinely

ambiguous Guidelines questions should be resolved in

a defendant’s favor.

A. This Court Has Provided Conflicting

Guidance for the Interaction of the Rule

of Lenity with Deference to Agency

Interpretations.

Although this Court has not explicitly discussed

the rule of lenity’s function in the context of Auer deference, several of its decisions—usually in the context

of the parallel doctrine of Chevron deference—have

provided conflicting guidance for lower courts. Lately,

the Court’s approach has tended to favor the rule of

lenity over deference to agency interpretations. Criminal laws, the Court has emphasized, “are for courts,

not for the Government, to construe.” Abramski v.

United States, 573 U.S. 169, 191 (2014). Thus, even

when the basic requirements for an agency to receive

deference appear to be satisfied (e.g., a statute or regulation is ambiguous and the agency’s formal interpretation is “reasonable”), this Court has still “never

held that the Government’s reading of a criminal statute [or regulation] is entitled to any deference.”

9

United States v. Apel, 571 U.S. 359, 360 (2014) (emphasis added). Rather, when a criminal statute or regulation is ambiguous, members of this Court have

taken the position that the rule of lenity should prevail over deference doctrines. See Leocal v. Ashcroft,

543 U.S. 1, 3–4, 11 n.8 (2004) (noting, in a context

where Chevron deference was arguably applicable,

that the rule of lenity would buttress the Court’s interpretation of the statute if it were ambiguous); see

also Whitman v. United States, 574 U.S. 1003, 1003–

04 (2014) (Scalia, J., statement respecting denial of

certiorari); Guedes v. Bureau of Alcohol, Tobacco,

Firearms & Explosives, 140 S. Ct. 789, 790 (2020)

(Gorsuch, J., statement respecting denial of certiorari).

Notably, despite the persuasive value of these observations, none of them is technically binding on the

lower courts. The statements in Abramski, Apel, and

Leocal were all arguably “made outside the context”

of a deference-eligible interpretation. See Guedes v.

Bureau of Alcohol, Tobacco, Firearms & Explosives,

920 F.3d 1, 25 (D.C. Cir. 2019). In Abramski and Apel,

the agency interpretations at issue may not have been

promulgated “with the force of law.” Id. And in Leocal,

this Court interpreted the statute without reference

to Chevron deference at all. See Gallardo v. Barr, 968

F.3d 1053, 1060 (9th Cir. 2020). The controlling nature of these statements is therefore at least debatable.

Further compounding the uncertainty, on at least

two occasions in the past, statements or decisions of

this Court have suggested that deference to agency

interpretations supersedes the rule of lenity. See Eh-

10

lert v. United States, 402 U.S. 99, 104–05 (1971) (appearing to uphold defendant’s conviction based on an

agency’s “reasonable” interpretation of an ambiguous

regulation); Babbitt v. Sweet Home Chapter of Cmtys.

for a Great Or., 515 U.S. 687, 703–04, 704 n.18 (1995)

(suggesting in a footnote that even in criminal cases

Chevron deference can displace the rule of lenity). But

again, the binding nature of these decisions on lower

courts is debatable. In Ehlert, because neither party

even raised the rule of lenity, this Court didn’t have

the opportunity to determine whether it would overcome (what is now) Auer deference. See United States

v. Phifer, 909 F.3d 372, 384 (11th Cir. 2018). And as

for Babbitt, the Court simply “brushed the rule of lenity aside in a footnote,” “with scarcely any explanation” in what Justice Scalia described as a “drive-by

ruling.” Whitman, 574 U.S. at 1005 (Scalia, J., statement respecting denial of certiorari). It is doubtful

whether Babbitt’s footnote should receive substantial

weight. Id.; Esquivel-Quintana v. Lynch, 810 F.3d

1019, 1030–31 (6th Cir. 2016) (Sutton, J., concurring

in part and dissenting in part).

The confusion is exacerbated by this Court’s

shifting takes on the canonical status of lenity. On the

one hand (and most consistent with common law), this

Court has characterized the rule of lenity as a

“traditional rule of construction.” See e.g., Nat’l Cable

& Telecomms. Ass’n v. Brand X Internet Servs., 545

U.S. 967, 985 (2005) (implying that the Brand X rule

might be inapposite when a court uses the rule of

lenity to construe an otherwise ambiguous statute

before an agency promulgates a contrary regulation);

Davis, 139 S. Ct. at 2333 (suggesting that the canon

of constitutional avoidance must be employed in a

11

manner consistent with the rule of lenity); United

States v. R. L. C., 503 U.S. 291, 307 (1992) (Scalia, J.,

concurring in part and concurring in the judgment)

(“[I]t is not consistent with the rule of lenity to

construe a textually ambiguous penal statute against

a criminal defendant on the basis of legislative

history.”). In fact, this Court once described the rule

of lenity as “perhaps not much less old than

construction itself.” United States v. Wiltberger, 18

U.S. (5 Wheat.) 76, 95 (1820). Viewed in this way, the

Court’s command in Kisor to grant Auer deference

only after exhausting “all the ‘traditional tools’ of

construction” would seem to entail that courts should

withhold Auer deference when an agency’s

interpretation of an ambiguous regulation in a

criminal case is unfavorable to a defendant. See Kisor,

139 S. Ct. at 2415.

That said, some members of this Court have described the rule of lenity as a somehow lesser rule of

construction: start with the text; then apply all other

methods of interpretation (maybe including deference

doctrines?); and if the statute or regulation is still

“grievously ambiguous,” then apply the rule of lenity.

Under such a rubric, “the rule of lenity rarely comes

into play.” Shular v. United States, 140 S. Ct. 779,

787–89 (2020) (Kavanaugh, J., concurring). And if

this methodology is rigidly employed, it is not difficult

to see why some courts would assume that Chevron or

Auer deference supersedes the rule of lenity.

Given these variegated statements regarding the

rule of lenity, lower courts need clear guidance from

12

this Court that the rule of lenity should take precedence over doctrines of deference to agency interpretations.

B. The Lower Courts Are Similarly Divided

on the Application of Lenity.

Not surprisingly, there is disagreement among

lower courts about whether the rule of lenity trumps

deference to agency interpretations of ambiguous

criminal statutes or regulations. The Third, Fifth, and

Eleventh Circuits have all held or suggested that the

rule of lenity overrides deference to agency interpretations. Nasir, 17 F.4th at 472–74 (Bibas, J., concurring) (joined by five judges of the en banc court to extoll the importance of the rule of lenity over the commentary when interpreting the Sentencing Guidelines); Diamond Roofing Co. v. Occupational Safety &

Health Rev. Comm’n, 528 F.2d 645, 649 (5th Cir.

1976) (“If a violation of a regulation subjects private

parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended

but did not adequately express.”); United States v.

Moss, 872 F.3d 304, 314–15 (5th Cir. 2015) (appearing

to reaffirm Diamond Roofing’s holding regarding

Auer deference in the criminal context); Phifer, 909

F.3d at 384–85 (holding that the rule of lenity can be

invoked to “defeat Auer deference whenever a defendant faces civil or criminal penalties”).

By contrast, the First, Sixth, and Tenth Circuits

consider that the rule of lenity has no place whenever

the standard prerequisites for Auer or Chevron deference are met. De Lima v. Sessions, 867 F.3d 260, 264–

65 (1st Cir. 2017); Esquivel-Quintana v. Lynch, 810

F.3d 1019, 1023–24 (6th Cir. 2016); Aposhian v. Barr,

13

958 F.3d 969, 982–84 (10th Cir. 2020), vacated for rehearing, 973 F.3d 1151 (10th Cir. 2020) (en banc), reinstated, Aposhian v. Wilkinson, 989 F.3d 890 (10th

Cir. 2021) (en banc). But even among those courts,

there is disagreement among judges about giving deference to agency interpretations in criminal contexts.

See Lewis, 963 F.3d at 27–28 (Torruella and Thompson, JJ., concurring); Esquivel-Quintana, 810 F.3d at

1027–32 (Sutton, J., concurring in part and dissenting

in part); United States v. Havis, 907 F.3d 439, 451–52

(6th Cir. 2018) (Thapar, J., concurring), vacated for

rehearing en banc, 927 F.3d 382, 386–87 (6th Cir.

2019) (en banc); Aposhian, 958 F.3d at 998–99 (Carson, J., dissenting); Aposhian, 989 F.3d at 898–902

(en banc) (Tymkovich, J., dissenting) (joined by the

four other dissenting judges); id. at 904–06 (Eid, J.,

dissenting) (same).

Finally, the D.C. and Fourth Circuits have panel

decisions embracing both approaches. Campbell, 22

F.4th at 446 (suggesting that the rule of lenity should

apply instead of Auer deference); Winstead, 890 F.3d

at 1092 n.14 (same); but see Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 535 (4th Cir. 2005) (holding that

Chevron applies instead of lenity); United States v.

Kanchanalak, 192 F.3d 1037, 1050 n.23 (D.C. Cir.

1999) (same); Guedes, 920 F.3d at 23–28 (same).

The time is ripe to harmonize the lower courts by

holding by making clear that Kisor requires the rule

of lenity, as a traditional tool of statutory construction, to apply before Stinson/Auer deference.

C. The Rule of Lenity Should Apply to

Interpretations of the Sentencing

Guidelines.

14

The rule of lenity is a longstanding rule of construction grounded in the “instinctive distaste against

[individuals] languishing in prison unless the lawmaker has clearly said they should[.]” R. L. C., 503

U.S. at 305 (cleaned up). The rule originated “in 16thcentury England,” and gained “broad acceptance” in

the 17th century as a tool to mitigate Parliament’s

multiplication of capital offenses. Johnson v. United

States, 576 U.S. 591, 613–14 (2015) (Thomas, J., concurring in the judgment). Today, that rule still “serves

our nation's strong preference for liberty.” Nasir, 17

F.4th at 473 (Bibas, J., concurring). And it does so not

only by resolving “issues about the substantive scope

of criminal statutes, but [also by answering] questions

about the severity of sentencing.” R. L. C., 503 U.S. at

305 (cleaned up).

When “applying Auer would extend [a defendant’s]

time in prison, alarm bells should be going off.” Havis,

907 F.3d at 450 (Thapar, J., concurring). The rule of

lenity requires courts “to favor a more lenient interpretation of a criminal statute [or regulation].” Kasten

v. Saint-Gobain Performance Plastics Corp., 563 U.S.

1, 16 (2011). Using Auer/Stinson deference to increase

a defendant’s punishment turns that “normal construction of criminal statutes [and regulations] upside-down, replacing the doctrine of lenity with a doctrine of severity.” Cf. Crandon v. United States, 494

U.S. 152, 178 (1990) (Scalia, J., concurring in the

judgment).

While the Auer/Stinson doctrine is relatively new

and rooted largely in policy views regarding things

like agency expertise, the rule of lenity embodies more

profound common law and constitutional concerns.

Kisor, 139 S. Ct. at 2413 (noting some policy objectives

15

of Auer deference); Aposhian, 989 F.3d at 899 (en

banc) (Tymkovich, J., dissenting) (noting the constitutional purposes of the rule of lenity). The rule of lenity exists to promote “fair notice to those subject to the

criminal laws, to minimize the risk of selective or arbitrary enforcement, and to maintain the proper balance between Congress, prosecutors, and courts.”

United States v. Kozminski, 487 U.S. 931, 952 (1988).

Those objectives are advanced when the rule of lenity

applies to the Guidelines before giving Auer/Stinson

deference to the commentary.

First, the rule of lenity is designed to further the

requirement of due process that laws are written so

as to give “fair warning” to the “common world” of

their implications. United States v. Lanier, 520 U.S.

259, 265–66 (1997). It would require “an uncommon

level of acuity from average citizens to know that they

must” look not just to the statutory language and Sentencing Guidelines to know the consequences of their

actions, but also “to the interpretive gap-filling of” the

commentary “which may or may not be upheld” as

consistent with the statute and Guidelines by the

court. Cf. Aposhian, 989 F.3d at 899–900 (en banc)

(Tymkovich, J., dissenting); accord Guedes, 140 S. Ct.

at 790 (Gorsuch, J., statement regarding denial of certiorari). A requirement that the Sentencing Commission make the rules clear in the Guidelines themselves if it wants deference when imposing harsher

sentences gives individuals much greater notice and

better preserves due process. See The Enterprise, 8 F.

Cas. 732, 734 (C.C.D.N.Y. 1810) (No. 4499) (Justice

Livingston) (“If it be the duty of a jury to acquit where

[reasonable] doubts exist concerning a fact, it is

equally incumbent on a judge not to apply the law to

16

a case where he labours under the same uncertainty

as to the meaning of the legislature.”).

Second, applying the rule of lenity to the Guidelines also protects separation of powers interests. See

Kozminski, 487 U.S. at 952; Wiltberger, 18 U.S. at 95.

Because criminal penalties, like the criminalizing of

certain acts, “represents the moral condemnation of

the community,” Congress generally should define

both criminal activities and penalties. See United

States v. Bass, 404 U.S. 336, 348 (1971). It is true, the

Court has held that the Sentencing Commission

promulgating its Guidelines does not violate the intricate balance of power created by Constitution. Mistretta v. United States, 488 U.S. 361, 393 (1989). Nevertheless, the legislative (or at least quasi-legislative)

power that the Sentencing Commission wields is no

small thing. See generally id. at 413–27 (Scalia, J.,

dissenting). And it can only constitutionally promulgate these Guidelines “because they must pass two

checks: congressional review and the notice and comment requirements of the Administrative Procedure

Act.” Lewis, 963 F.3d at 27–28 (Torruella and Thompson, JJ., concurring) (internal quotation marks omitted). While the Sentencing Commission may often follow a similar process in adopting the commentary,

app. at 13a, the Commission nonetheless still holds

that it can promulgate and amend official commentary without congressional review or administrative

rulemaking. United States Sentencing Commission,

Rules of Practice and Procedure 6–7 (as amended

Aug. 18, 2016). Lewis, 963 F.3d at 27–28. When the

rule lenity comes before Auer/Stinson deference to the

17

commentary in interpreting the Guidelines, the concerns surrounding Sentencing Commission’s lawmaking authority are better assuaged.

The rule of lenity is a “venerable” rule of construction that reflects important common-law values. R. L.

C., 503 U.S. at 305; Wiltberger, 18 U.S. at 95. Importantly, it also protects and enhances constitutional

guarantees to defendants. Auer/Stinson deference,

while it may serve valuable goals, can often frustrate

those constitutional guarantees. The petition should

be granted so this Court can clarify that its instruction in Kisor to apply the tools of statutory interpretation before a court gives deference to an agency interpretation of its own regulations applies to the Sentencing Guidelines.

CONCLUSION

For all the foregoing reasons, we urge the Court to

grant the petition.

Respectfully submitted,

Clark M. Neily III

Counsel of Record

Gregory Mill

CATO INSTITUTE

1000 Mass. Ave., NW

Washington, DC 20001

(202) 425-7499

cneily@cato.org

February 10, 2023