Amicus Curiae Brief — Cory Ratzloff, Petitioner v. United States

No. 23-310

In the Supreme Court of the United States

__________

CORY RATZLOFF,

Petitioner,

v.

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

__________

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

__________

Anastasia P. Boden

Counsel of Record

Joshua A. Katz

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 216-1414

aboden@cato.org

November 3, 2023

i

QUESTION PRESENTED

In Kisor v. Wilkie, this Court clarified that courts

may defer to an agency’s interpretation of its own regulations only when that regulation is “genuinely ambiguous, even after a court has resorted to all the

standard tools of interpretation.” 139 S. Ct. 2400,

2414 (2019). Yet when considering the commentary to

the U.S. Sentencing Commission’s Sentencing Guidelines, six Circuit courts continue to practice a heightened level of deference to the commentary, relying on

Stinson v. United States, 508 U.S. 36 (1993). Meanwhile, six other Circuit courts follow the rules limiting

deference articulated in Kisor.

The question presented is whether the limits to

agency deference articulated in Kisor apply when

courts consider the commentary to the U.S. Sentencing Guidelines.

ii

TABLE OF CONTENTS

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

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

TABLE OF AUTHORITIES ..................................... iv

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

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

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

I.

II.

THIS CASE IS AN IDEAL VEHICLE TO

CLARIFY THE EFFECT OF KISOR ON THE

SENTENCING GUIDELINES

COMMENTARY................................................. 5

A.

The Tenth Circuit’s Holding

Rests Solely on Kisor’s Effect. .............. 7

B.

Few Decisions From Lower

Courts Have So Squarely Raised

the Kisor-Stinson Issue. ........................ 8

C.

A Six-Six Circuit Split Exists

Among the Federal Courts of

Appeals and Courts Are

Requesting Guidance. ......................... 10

THIS CASE IS AN EXCELLENT VEHICLE

FOR ASSESSING THE ROLE OF LENITY

POST-KISOR. .................................................. 13

A.

The Rule of Lenity Should

Apply to Interpretations of The

Sentencing Guidelines Before

Any Deference is Applied. ................... 14

iii

B.

This Court Has Provided

Conflicting Guidance on Lenity’s

Interactions with Deference. .............. 18

C.

The Federal Circuit Courts of

Appeal Are Divided. ............................ 21

CONCLUSION ......................................................... 23

iv

TABLE OF AUTHORITIES

Page(s)

Cases

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

(2014) .................................................................... 18

Aposhian v. Barr, 958 F.3d 969

(10th Cir. 2020)..................................................... 22

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

Cir. 2021) .................................................. 15, 16, 22

Auer v. Robbins, 519 U.S. 452 (1997) .................... 2, 4

Babbitt v. Sweet Home Chapter of Cmtys. for

a Great Or., 515 U.S. 687 (1995) .......................... 19

Bowles v. Seminole Rock & Sand Co., 325

U.S. 410 (1945) ................................................... 2, 4

Crandon v. United States, 494 U.S. 152

(1990) .................................................................... 15

De Lima v. Sessions, 867 F.3d 260

(1st Cir. 2017) ....................................................... 22

Diamond Roofing Co. v. Occupational Safety

& Health Rev. Comm’n, 528 F.2d 645

(5th Cir. 1976)....................................................... 22

Ehlert v. United States, 402 U.S. 99 (1971) ............ 19

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

(6th Cir. 2016)................................................. 20, 22

Gallardo v. Barr, 968 F.3d 1053

(9th Cir. 2020)....................................................... 19

Guedes v. Bureau of Alcohol, Tobacco,

Firearms & Explosives, 140 S. Ct. 789

(2020) .............................................................. 16, 19

v

Guedes v. Bureau of Alcohol, Tobacco,

Firearms & Explosives, 920 F.3d 1

(D.C. Cir. 2019) ............................................... 19, 23

Johnson v. United States, 576 U.S. 591

(2015) .................................................................... 15

Kasten v. Saint-Gobain Performance Plastics

Corp., 563 U.S. 1 (2011) ....................................... 15

Kisor v. Wilkie, 139 S. Ct. 2400

(2019) .............................................2, 3, 4, 14, 15, 21

Leocal v. Ashcroft, 543 U.S. 1 (2004) ....................... 19

Mistretta v. United States, 488 U.S. 361

(1989) .................................................................... 17

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

Internet Servs., 545 U.S. 967 (2005) .................... 20

Shular v. United States, 140 S. Ct. 779

(2020) .................................................................... 21

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

(1993) ........................................................ 2, 4, 7, 14

The Enterprise, 8 F. Cas. 732

(C.C.D.N.Y. 1810) (No. 4499) ............................... 16

United States v. Adair, 38 F.4th 341

(3d Cir. 2022) .......................................................... 9

United States v. Apel, 571 U.S. 359 (2014) ............. 18

United States v. Bass, 404 U.S. 336 (1971) ............. 17

United States v. Brooks, 751 F.3d 1204

(10th Cir. 2014)....................................................... 8

United States v. Campbell, 22 F.4th 438

(4th Cir. 2022)............................................. 6, 12, 23

vi

United States v. Castillo, 69 F.4th 648

(9th Cir. 2023)................................................... 6, 10

United States v. Cordova-Lopez, 34 F.4th 442

(5th Cir. 2022)......................................................... 9

United States v. Davis, 139 S. Ct. 2319

(2019) .......................................................... 4, 13, 20

United States v. Dupree, 57 F4th. 1269

(11th Cir. 2023)........................................... 6, 10, 11

United States v. Havis, 907 F.3d 439

(6th Cir. 2018)................................................. 15, 22

United States v. Jenkins, 50 F4th 1185

(D.C. Cir. 2022) ................................................. 6, 12

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

(D.C. Cir. 1999) ..................................................... 23

United States v. Kirilyuk, 29 F.4th 1128

(9th Cir. 2022)..................................................... 8, 9

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

(1988) .............................................................. 16, 17

United States v. Lanier, 520 U.S. 259 (1997) .......... 16

United States v. Lewis, 963 F.3d 16

(1st Cir. 2020) ............................................. 6, 17, 22

United States v. Malik Nasir, 17 F.4th 459

(3d Cir. 2021) .....................................2, 6, 11, 15, 21

United States v. Maloid, 71 F.4th 795

(10th Cir. 2023)................................................. 6, 12

United States v. Moses, 23 F.4th 347

(4th Cir. 2022)................................................... 6, 12

vii

United States v. Moses, No. 21-4067, 2022

U.S. App. LEXIS 7694

(4th Cir. Mar. 23, 2022) ........................................ 12

United States v. Moss, 872 F.3d 304

(5th Cir. 2015)....................................................... 22

United States v. Owen, 940 F.3d 308

(6th Cir. 2019)......................................................... 9

United States v. Perez, 5 F.4th 390

(3d Cir. 2021) .......................................................... 9

United States v. Phifer, 909 F.3d 372

(11th Cir. 2018)............................................... 20, 22

United States v. R. L. C., 503 U.S. 291 (1992) . 15, 18,

20

United States v. Ratzloff, No. 22-3128, 2023

U.S. App. LEXIS 25765

(10th Cir. June 27, 2023)........................ 4, 5, 6, 7, 8

United States v. Riccardi, 989 F.3d 476

(6th Cir. 2021)........................................... 6, 8, 9, 11

United States v. Richardson, 958 F.3d 151

(2d Cir. 2020) .......................................................... 6

United States v. Rivera, 76 F.4th 1085

(8th Cir. 2023)......................................................... 6

United States v. Ruffin, 978 F.3d 1000

(6th Cir. 2020)......................................................... 9

United States v. Smith, 989 F.3d 575

(7th Cir. 2021)......................................................... 6

United States v. Tate, 999 F.3d 374

(6th Cir. 2021)......................................................... 9

viii

United States v. Vargas, 74 F.4th 673

(5th Cir. 2023)................................................... 6, 13

United States v. Wiltberger, 18 U.S.

(5 Wheat) 76 (1820) .................................. 17, 18, 20

United States v. Winstead, 890 F.3d 1082

(D.C. Cir. 2018) ............................................... 11, 23

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

(2014) .............................................................. 18, 20

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

(4th Cir. 2005)....................................................... 23

Other Authorities

United States Sentencing Commission, Rules

of Practice and Procedure (as amended

Aug. 18, 2016) ....................................................... 17

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 interests Cato because it involves courts

giving away their power to other branches, sometimes

costing people years of freedom.

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

filing of this brief. No party’s counsel authored this brief in any

part and amicus alone funded its preparation and submission.

2

SUMMARY OF ARGUMENT

In Kisor v. Wilkie, 39 S. Ct. 2400, 2414 (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,

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

doing so, the 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.

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.” Id. at 2415. But that rule is incompatible with continued rigid adherence to the 1993 decision in Stinson, which required deference to the Sentencing Commission’s commentary to its Sentencing

Guidelines—even when the Guidelines were unambiguous. As a result of Stinson, lower courts were put

into a “slumber of reflexive deference” to the commentary. United States v. Malik Nasir, 17 F.4th 459, 472

(3d Cir. 2021) (en banc) (Bibas, J., concurring). The

present case is the latest clash among the courts of

appeals who are all trying to answer the same question: whether Kisor’s limitations on Auer deference

supersede the strong level of deference called for in

Stinson.

This case presents the best opportunity yet for the

Court to provide much-needed guidance to the lower

3

courts on that divisive question. The Tenth Circuit affirmed a substantial increase in Cory Ratzloff’s sentencing range solely because the court believed itself

bound by Stinson to give deference to the Guidelines

commentary. In doing so, the panel held that Kisor’s

updated approach to agency deference had no effect at

all on Stinson. Yet six other circuit courts disagree.

Twelve courts of appeals have now waded into that

doctrinal debate, and this case presents the Court

with the cleanest opportunity yet to address it.

The petition also presents the opportunity for this

Court to resolve another problem that has plagued

courts trying to make sense of deference doctrines. In

criminal cases, should courts apply the rule of lenity

when interpreting ambiguous statutes or regulations?

Or should courts first give deference to agencies’ interpretations of those provisions, and only apply lenity afterwards if any ambiguity remains? The Court’s

command to exhaust all “traditional tools of construction” before granting deference to an agency’s interpretation would seem to preclude deference when the

rule of lenity is otherwise applicable—the rule of lenity is, after all, a longstanding tool of construction. Kisor, 139 S. Ct. at 2415. Unfortunately, lower courts

remain divided on this crucial question as well.

This case provides the Court with an opportunity

to clarify its holding in Kisor and to affirm what justice demands: courts must apply the rule of lenity before they defer to agencies’ interpretations of their

ambiguous regulations in criminal cases.

ARGUMENT

This Court in Stinson held that the Commentary

to the Sentencing Guidelines was due the same level

4

of deference as an agency’s interpretations of its own

regulations. Stinson, 508 U.S. at 45. As the Court

noted, at the time, that was Seminole Rock 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 regulation.’” Id. at 45 (quoting Seminole Rock & Sand Co.,

325 U.S. at 414). This high level of deference would

eventually come to be known as Auer deference. See

generally Auer, 519 U.S. 452.

But in Kisor, this Court clarified when agency interpretations are due Auer deference. “First and foremost, a court should not afford Auer deference unless

the regulation is genuinely ambiguous.” Kisor, 139 S.

Ct. at 2415. “And before concluding that a rule is genuinely ambiguous, a court must exhaust all the ‘traditional tools’ of construction.” This includes the rule of

lenity. See United States v. Davis, 139 S. Ct. 2319,

2333 (2019). Furthermore, the agency’s interpretation must be “reasonable.” Kisor, 139 S.Ct. at 2415.

The interpretation must also be one “actually made

by the agency[,]” “in some way implicate its substantive expertise[,]” and reflect a “fair and considered

judgment.” Id. at 2416–17. But the courts of appeals

have split on whether these qualifications apply to

deference under Stinson. This split can only be resolved by this Court, and Cory Ratzloff’s case presents

the best opportunity to date.

Cory Ratzloff broke the window of a gun store, entered the store, and stole firearms from a display case.

United States v. Ratzloff, No. 22-3128, 2023 U.S. App.

LEXIS 25765, at *1 (10th Cir. June 27, 2023). He pled

guilty to the federal crime of stealing firearms from a

5

federally licensed firearms dealer. Id. at *2. Ratzloff’s

sentence hinges on whether he “used or possessed any

firearm . . . in connection with another felony offense[,]” namely, the state law crime of burglary. Id.

If the answer is yes, a four-level sentencing enhancement applies. Id.

Ratzloff argues that he did not use or possess a

firearm “in connection with” the burglary because the

firearms he stole were simply the object of that burglary. Id. Common sense suggests that stealing a gun

is not the same as carrying a gun as a weapon of violence or intimidation to facilitate a theft. Nothing in

the Sentencing Guidelines themselves precludes

Ratzloff’s argument. Indeed, it is hard to locate ambiguity in the text of the Guideline to suggest his interpretation is wrong.

Yet Application Note 14(B) of the commentary to

the Sentencing Guidelines states that the sentencing

enhancement applies “in a case in which a defendant

who, during the course of a burglary, finds and takes

a firearm, even if the defendant did not engage in any

other conduct with that firearm during the course of

the burglary.” Id. at *3. The Tenth Circuit deferred to

the commentary and gave Ratzloff the enhancement.

But the result would be different if Kisor applied.

Whether Kisor applies is a question for this Court to

decide.

I.

THIS CASE IS AN IDEAL VEHICLE TO

CLARIFY THE EFFECT OF KISOR ON THE

SENTENCING GUIDELINES COMMENTARY.

This case presents the best opportunity to date for

this Court to explain how its decision in Kisor affects

6

the deference owed to the U.S. Sentencing Commission’s commentary on the Sentencing Guidelines. The

question of whether Kisor updated the deferential

rule in Stinson was essential to the Tenth Circuit’s

holding. The Tenth Circuit reasoned that while Kisor

“narrowed Auer/Seminole Rock deference[,]” the Kisor

opinion “did not address its impact on Stinson[.]”

Ratzloff, 2023 U.S. App. LEXIS 25765, at *4. Absent

direction from this Court, the Tenth Circuit felt bound

to follow its own precedent and to ignore Kisor. Id. at

*4–*5.

Every regional circuit has addressed this question

since Kisor.2 But many of those cases suffered from

significant vehicle issues, and thus did not present

this Court the same opportunity to resolve the matter

as this case does. It was sometimes unclear whether

this Court would need to resolve the doctrinal debate

to resolve those cases. By contrast, the deference

question is squarely presented here. This Court

should take the opportunity to address it.

2 See United States v. Castillo, 69 F.4th 648 (9th Cir. 2023);

United States v. Dupree, 57 F4th. 1269 (11th Cir. 2023) (en banc);

Malik Nasir, 17 F.4th at 459 (en banc); United States v. Riccardi, 989 F.3d 476 (6th Cir. 2019); United States v. Jenkins, 50

F4th 1185 (D.C. Cir. 2022); United States v. Campbell, 22 F.4th

438 (4th Cir. 2022); United States v. Moses, 23 F.4th 347 (4th

Cir. 2022); United States v. Maloid, 71 F.4th 795 (10th Cir.

2023); United States v. Vargas, 74 F.4th 673 (5th Cir. 2023);

United States v. Rivera, 76 F.4th 1085 (8th Cir. 2023); United

States v. Smith, 989 F.3d 575 (7th Cir. 2021); United States v.

Richardson, 958 F.3d 151 (2d Cir. 2020); United States v. Lewis,

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

7

A. The Tenth Circuit’s Holding Rests Solely

on Kisor’s Effect.

The Tenth Circuit could not have been clearer that

its decision stands or falls on the question of whether

Kisor applies to Stinson. “Kisor did not address its impact on Stinson . . . [t]he courts of appeals are divided

on whether Kisor changed how courts should apply

Stinson.” Id. at *4. Because “Kisor did not address

Stinson,” the Tenth Circuit believed that it was

“bound to follow on-point precedent until the Supreme

Court . . . overrules it.” Id. at *5. And under the Tenth

Circuit’s precedent, “we must evaluate Guidelines

commentary under Stinson’s deferential standard.”

Id. “Thus, we must defer to Application Note 14(B)

unless it fails the Stinson test—that is, unless 14(B)

‘violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, the

relevant Guideline.’” Id. *6 (quoting Stinson, 508 U.S.

at 38) (alterations accepted). Finding that 14(B)

passed this highly deferential test, the Tenth Circuit

upheld the enhancement. Id.

Importantly, the supposed inapplicability of Kisor

to Stinson was not merely the principal basis for the

Tenth Circuit’s decision—it was the sole basis for its

holding. The panel never suggested that the commentary merely states what the Guidelines unambiguously require. Nor did the panel hint at any other basis for affirming Ratzloff’s sentencing enhancement.

It did not need to, because its conclusion was simply

that Stinson continues to have the same effect today

as it did in 1993.

8

The Tenth Circuit’s holding provides this Court

with a clean opportunity to address Kisor’s implications for correctly interpreting and applying the Sentencing Guidelines. Indeed, the Tenth Circuit plainly

indicated as much, stating it “may overrule” the

Tenth Circuit’s precedent giving deference to the Sentencing Guidelines commentary—“as Mr. Ratzloff

asks us to do—only if a ‘subsequent Supreme Court

decision contradicts or invalidates our prior analysis.”

Id. (quoting United States v. Brooks, 751 F.3d 1204,

1210 (10th Cir. 2014)).

The Tenth Circuit seeks guidance. This Court

should provide it.

B. Few Decisions From Lower Courts Have

So Squarely Raised the Kisor-Stinson Issue.

Since Kisor, the federal courts of appeals have had

many occasions to consider the level of deference owed

to the Guidelines commentary. And while many addressed the question of Kisor’s applicability to Stinson, few have so perfectly teed up the issue for this

Court.

Sometimes, no deference is due under any theory.

For instance, in United States v. Riccardi, the relevant commentary, Application Note 3(F)(i) to

U.S.S.G. § 2B1.1(b)(1)(L), requires sentencing courts

to increase a defendant’s guidelines range for specified offenses based on the amount of “loss.” 989 F.3d

476, 483–86 (6th Cir. 2021); id. at 490–93 (Nalbandian, J., concurring in part and concurring in the

judgment); see also United States v. Kirilyuk, 29 F.4th

1128, 1133–39 (9th Cir. 2022). The commentary instructs courts to treat the theft of an access device as

9

causing a loss of at least $500. Riccardi, 989 F.3d at

481. Both cases discuss the Kisor-Stinson issue, but it

is far from clear that courts need to resolve the larger

doctrinal debate because this is plainly not a valid interpretation of “loss.” See Riccardi, 989 F.3d at 483–

84; Kirilyuk, 29 F.4th at 1136–38.

This same doctrinal discussion has emerged in a

variety of other settings as well—but usually without

straightforwardly presenting the issue for the Court’s

consideration as this case does. Lower courts sometimes acknowledge the issue while finding no party

has challenged the application of the commentary.

See e.g., United States v. Owen, 940 F.3d 308, 314 (6th

Cir. 2019). Other times, the courts construe the commentary in such a way as to avoid potential conflict

with the Guidelines. See e.g., United States v. Perez, 5

F.4th 390, 396–97 (3d Cir. 2021). And on several occasions, courts have affirmed defendants’ sentences

by averring that the sentences are appropriate regardless of Kisor’s applicability—either because the

district court had an alternative basis for the sentence, or because they determined that the commentary merely described “what the Guidelines’ text and

structure would unambiguously require even in its

absence.” See e.g., United States v. Cordova-Lopez, 34

F.4th 442, 444 (5th Cir. 2022) (commentary merely

describes what the Guidelines unambiguously require); United States v. Adair, 38 F.4th 341, 349–50

(3d Cir. 2022) (same); United States v. Tate, 999 F.3d

374, 380–83 (6th Cir. 2021) (same); United States v.

Ruffin, 978 F.3d 1000, 1007–08 (6th Cir. 2020) (alternative basis for sentence). But in this case, none of

these complicating factors apply.

10

Thus, while many cases touch on Kisor’s applicability to Stinson, it is rare for a lower-court decision

to squarely present the issue the way the Tenth Circuit’s has done here.

C. A Six-Six Circuit Split Exists Among the

Federal Courts of Appeals and Courts

Are Requesting Guidance.

Since Kisor, a deep circuit split as to the level of

deference owed to the Guidelines commentary has developed. It has reached the point where all the regional federal courts of appeals have weighed in. Most

recently, the Ninth Circuit held that “The more demanding deference standard articulated in Kisor applies to the Guidelines’ commentary.” United States v.

Castillo¸ 69 F.4th 648, 655 (9th Cir. 2023). Furthermore, continued deference to the Guidelines’ commentary, the Ninth Circuit found, “raises grave constitutional concerns.” Id. at 663.

The dispute is fully developed, and little to nothing

of value would be gained by permitting the controversy to continue to percolate. Indeed, the lower

courts and their judges have already requested definitive guidance on how to resolve this issue on multiple

occasions.

In an en banc opinion earlier this year, the Eleventh Circuit held that “continued mechanical application of [the Stinson] test would conflict directly with

Kisor.” Dupree, 57 F.4th at 1275. Indeed, the extreme

level of deference called for in Stinson resembled the

“caricature” of Auer deference the Supreme Court repudiated in Kisor. Id. Applying Kisor to Stinson, the

Eleventh Circuit concluded, avoided propping up that

11

caricature and was consistent with “Stinson’s instruction to treat the commentary like an agency’s interpretation of its own rule.” Id. at 1275–76. In a dissenting opinion, Judges Luck and Branch called for the

Supreme Court to decide the issue. Id. at 1290 (Luck,

J., dissenting).

The en banc Third Circuit has also applied Kisor’s

limiting principles to the Sentencing Guidelines commentary. In the Third Circuit’s view, “after the Supreme Court’s recent decision in [Kisor], it is clear

that [applying the standard set forth in Auer] is not

warranted.” Malik Nasir, 17 F.4th at 471.

The Sixth Circuit has also found that Kisor applies

to the Sentencing Guidelines commentary. Like the

Ninth Circuit, the Sixth Circuit found that because

Stinson “told courts to follow basic administrative-law

concepts,” Kisor’s instruction regarding when to defer

to an agency’s interpretation of its own regulations

“applies just as much” to the Sentencing Guidelines

commentary. Riccardi, 989 F.3d at 485. In a concurring opinion, Judge Nalbandian declined to apply Kisor to Stinson, but invited the Supreme Court “to expand its own precedent.” Id. at 492 (Nalbandian, J.,

concurring in part and concurring in the judgment).

“Perhaps, in the end, the Supreme Court will vindicate the thoughtful and well-reasoned majority opinion.” Id.

The D.C. Circuit has long been reluctant to give

Auer/Seminole Rock deference to the Sentencing

Guidelines commentary, even before Kisor. See

United States v. Winstead, 890 F.3d 1082, 1091 (D.C.

Cir. 2018). In more recent cases, the D.C. Circuit has

stated its belief that Kisor applies to Stinson, citing

12

both cases in the same sentence in a recent case. Jenkins, 50 F.4th at 1197.

The Fourth Circuit has issued contradictory rulings on the Kisor issue within two weeks of each

other. In United States v. Campbell, the Fourth Circuit applied Kisor to the Guidelines commentary. 22

F.4th at 445. Twelve days later, a different panel of

judges on the Fourth Circuit held that Stinson is “unaltered by Kisor.” Moses, 23 F.4th at 349. In a dissenting opinion, Judge King pointed out that under

Fourth Circuit precedent, “no panel of this Court is

entitled to circumscribe or undermine an earlier

panel decision” absent an en banc opinion or a ruling

by the Supreme Court. Id. at 359 (King, J., dissenting). Concurring with the Fourth Circuit’s denial rehearing en banc, Judge Niemeyer (the author of the

Moses opinion) stated that “we would welcome the Supreme Court’s advice on whether Stinson or Kisor controls the enforceability of and weight to be given

Guidelines commentary[.]” United States v. Moses,

No. 21-4067, 2022 U.S. App. LEXIS 7694 , at *6 (4th

Cir. Mar. 23, 2022) (Niemeyer, J., supporting denial

of rehearing en banc).

In contrast, the First, Second, Fifth, Seventh,

Eighth, and Tenth Circuits continue to apply the

highly deferential standard set forth in Stinson,

chiefly because they feel bound to follow precedent.

See Pet. App. 15–18. Here too, the lower courts appear

to be calling for guidance. “We will not extend Kisor

to the Commission’s commentary absent clear direction from the Court.” Maloid, 71 F.4th at 798. “Our

job, as an inferior court, is to adhere strictly to Supreme Court precedent, whether or not we think a

precedent’s best days are behind it.” Vargas, 74 F.4th

13

at 683. “Until the Supreme Court overrules Stinson,

we are bound to follow it.” Id. at 701 (Oldham, J., concurring).

Six circuit courts have lined up on one side of the

issue, and six circuit courts on the other. Judges taking both positions have expressly stated that they are

looking to the Supreme Court to resolve the issue. The

issue cries out for the resolution only this Court can

provide. When the correct interpretation of the Sentencing Guidelines is in dispute, whether a defendant

spends additional years in prison should not be determined by an accident of geography. This Court should

give a definitive answer, and this case provides the

opportunity to do so.

II.

THIS CASE IS AN EXCELLENT VEHICLE

FOR ASSESSING THE ROLE OF LENITY

POST-KISOR.

The rule of lenity provides “that ambiguities about

the breadth of a criminal statute should be resolved

in the defendant’s favor.” Davis, 139 S. Ct. at 2333.

Prior to Kisor, however, the heightened deference

that was owed to the commentary arguably precluded

the use of the rule of lenity when the Guidelines were

ambiguous but the commentary was on point. 3 See

3 By itself, Stinson does 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.

14

Stinson, 508 U.S. at 38. 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 conclusion about the best interpretation of the regulation

at issue.”).

Unfortunately, the Court’s treatment of lenity together with deference to agency interpretations has

resulted in conflicts among the lower courts. This case

is an opportunity to make clear that the rule of lenity

kicks in before deference does.

A. The Rule of Lenity Should Apply to Interpretations of The Sentencing Guidelines Before Any Deference is Applied.

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[.]” United States

v. R. L. C., 503 U.S. 291, 305 (1992) (cleaned up). The

rule originated “in 16th-century England,” and gained

“broad acceptance” in the 17th century as a tool to

15

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.” Malik 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.”

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

2018) (Thapar, J., concurring). The rule of lenity requires courts “to favor a more lenient interpretation

of a criminal statute [or regulation].” Kasten v. SaintGobain 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] upsidedown, 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 agency

expertise, the rule of lenity is older and embodies fundamental common law and constitutional concerns.

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

of Auer deference); Aposhian v. Wilkinson, 989 F.3d

890, 899 (10th Cir. 2021) (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

16

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 furthers the due process

requirement that laws be written 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 v. Bureau of Alcohol, Tobacco,

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

(Gorsuch, J., statement regarding denial of certiorari). Requiring the Sentencing Commission to make

rules imposing harsher sentences clear in the Guidelines themselves 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)

(Livingston, J.) (“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 a case where he labours under the same uncertainty as to the meaning of the legislature.”).

17

Second, applying the rule of lenity to the Guidelines bolsters the separation of powers. See Kozminski, 487 U.S. at 952; United States v. Wiltberger, 18

U.S. (5 Wheat) 76, 95 (1820). Because criminal penalties, like the criminalization of certain acts, “represent[] 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). True, the Court has held that by

promulgating guidelines, the Sentencing Commission

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 issue 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 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 of lenity comes before Auer/Stinson deference to

the commentary in interpreting the Guidelines, the

concerns surrounding the Sentencing Commission’s

lawmaking authority are less apparent.

18

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. (5 Wheat) at

95. Importantly, it also protects and enhances constitutional guarantees to defendants. Auer/Stinson deference, while it may serve valuable goals in the right

contexts, may also imperil these core constitutional

guarantees if it is applied too broadly.

B. This Court Has Provided Conflicting

Guidance on Lenity’s Interactions with

Deference.

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. 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.” United States v.

Apel, 571 U.S. 359, 360 (2014). 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 Whitman v. United States, 574 U.S. 1003, 1003–04 (2014)

(Scalia, J., statement respecting denial of certiorari);

19

Guedes, 140 S. Ct. at 790 (Gorsuch, J., statement respecting denial of certiorari); see also 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).

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).

Further compounding the uncertainty, on at least

two occasions this Court has suggested that deference

to agency interpretations supersedes the rule of lenity. See Ehlert v. United States, 402 U.S. 99, 104–05

(1971) (appearing to uphold the 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, neither party even raised the rule of lenity, meaning 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

20

(11th Cir. 2018). And in 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., Davis, 139 S. Ct.

at 2333 (suggesting that the canon of constitutional

avoidance must be employed in a manner consistent

with the rule of lenity); 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); R. L. C., 503 U.S.

at 307 (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.” Wiltberger, 18 U.S. (5 Wheat.) at 95.

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 re-

21

quire courts to withhold Auer deference until after applying lenity criminal cases. 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 (perhaps even including

deference doctrines); and if the statute or regulation

is still “grievously ambiguous,” only then consider applying the rule of lenity. Under such a rubric, “the rule

of lenity rarely comes into play.” E.g. 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

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

C. The Federal Circuit Courts of Appeal

Are Divided.

Not surprisingly, there is disagreement among

lower courts about whether the rule of lenity overcomes 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. Malik 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

22

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

hold 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, 810 F.3d at 1023–

24; Aposhian v. Barr, 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

within 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, J.J., concurring); Esquivel-Quintana, 810 F.3d at 1027–32 (Sutton, J.,

concurring in part and dissenting in part); Havis, 907

F.3d at 451–52 (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).

23

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

decisions pulling in opposite directions. 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).

It’s time harmonize the lower courts by making

clear that Kisor requires the rule of lenity, as a traditional tool of statutory construction, to apply before

Stinson/Auer deference.

CONCLUSION

For the foregoing reasons, and those described by

the Petitioner, the Court should grant the petition.

Respectfully submitted,

Anastasia P. Boden

Counsel of Record

Joshua Katz

CATO INSTITUTE

1000 Mass. Ave., NW

Washington, DC 20001

(202) 216-1414

aboden@cato.org

November 3, 2023