Amicus Curiae Brief — Kendrick Jarrell Beaird, Petitioner v. United States

Supreme Court briefJul 7, 2026

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No. 25-5343

In the Supreme Court of the United States

KENDRICK JARRELL BEAIRD,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

——————

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF AMICUS CURIAE

STATE OF WEST VIRGINIA

IN SUPPORT OF NEITHER PARTY

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

Counsel for Amicus Curiae State of West Virginia

TABLE OF CONTENTS

Introduction and Interests of Amici Curiae ..................... 1

Summary of Argument ........................................................ 3

Argument .............................................................................. 4

When it comes to criminal statutes, regulations,

and guidelines, lenity should displace deference ..... 4

II.

Lenity aside, the Court should not embrace

any administrative deference in this context ......... 10

Conclusion ........................................................................... 18

TABLE OF AUTHORITIES

Page(s)

Cases

The Adventure,

1 F. Cas. 202 (CC Va. 1812) ........................................... 6

Am. Fed’n of Lab. & Cong. of Indus. Orgs.

v. Fed. Election Comm'n,

333 F.3d 168 (D.C. Cir. 2003) ........................................ 4

Aposhian v. Wilkinson,

989 F.3d 890 (10th Cir. 2021) ......................................... 7

Apprendi v. New Jersey,

530 U.S. 466 (2000) ................................................. 10, 17

Bifulco v. United States,

447 U.S. 381 (1980) ......................................................... 5

Bryan v. United States,

524 U.S. 184 (1998) ......................................................... 6

City of Arlington v. FCC,

569 U.S. 290 (2013) ......................................................... 7

Crowell v. Benson,

285 U.S. 22 (1932) ........................................................... 7

Decker v. Nw. Env’t Def. Ctr.,

568 U.S. 597 (2013) ....................................................... 16

Dixson v. United States,

465 U.S. 482 (1984) ......................................................... 5

Dolfi v. Pontesso,

156 F.3d 696 (6th Cir. 1998) ..................................... 9, 14

Dunn v. United States,

442 U.S. 100 (1979) ......................................................... 7

III

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) ......................................................... 4

Esteras v. United States,

606 U.S. 185 (2025) ....................................................... 10

Gall v. United States,

552 U.S. 38 (2007) ............................................... 8, 11, 16

Gun Owners of Am., Inc. v. Garland,

19 F.4th 890 (6th Cir. 2021) ........................................... 4

Hill v. United States ex rel. Wampler,

298 U.S. 460 (1936) ....................................................... 10

Hughes v. United States,

584 U.S. 675 (2018) ....................................................... 11

Jean v. Nelson,

472 U.S. 846 (1985) ....................................................... 16

Kahler v. Kansas,

589 U.S. 271 (2020) ....................................................... 14

Kisor v. Wilkie,

588 U.S. 558 (2019) .................................1, 2, 3, 4, 7, 8, 9,

10, 11, 12, 14, 17, 18

Liparota v. United States,

471 U.S. 419 (1985) ......................................................... 9

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ....................................2, 7, 12, 16, 18

McBoyle v. United States,

283 U.S. 25 (1931) ........................................................... 7

Mistretta v. United States,

488 U.S. 361 (1989) ......................................................... 9

Molina-Martinez v. United States,

578 U.S. 189 (2016) ....................................................... 11

Moskal v. United States,

498 U.S. 103 (1990) ......................................................... 5

OfficeMax, Inc. v. United States,

428 F.3d 583 (6th Cir. 2005) ........................................... 4

Pension Benefit Guar. Corp. v. LTV Corp.,

496 U.S. 633 (1990) ....................................................... 14

Pepper v. United States,

562 U.S. 476 (2011) ....................................................... 16

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ................................................... 12, 13

Peugh v. United States,

569 U.S. 530 (2013) ....................................................... 11

Rita v. United States,

551 U.S. 338 (2007) ....................................................... 16

Rosales-Mireles v. United States,

585 U.S. 129 (2018) ....................................................... 11

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) ................................................... 7, 18

Stinson v. United States,

508 U.S. 36 (1993) ............................................. 1, 3, 4, 17

Talk Am., Inc. v. Mich. Bell Tel. Co.,

564 U.S. 50 (2011) ......................................................... 17

Taylor v. United States,

495 U.S. 575 (1990) ( ....................................................... 6

Thomas Jefferson Univ. v. Shalala,

512 U.S. 504 (1994) ....................................................... 12

Touby v. United States,

500 U.S. 160 (1991) ....................................................... 13

United States v. Bass,

404 U.S. 336 (1971) ......................................................... 9

United States v. Boler,

115 F.4th 316 (4th Cir. 2024) ......................................... 2

United States v. Campbell,

22 F.4th 438 (4th Cir. 2022) ........................................... 8

United States v. Campos-Serrano,

404 U.S. 293 (1971) ......................................................... 5

United States v. Chandler,

104 F.4th 445 (3d Cir. 2024) ........................................... 5

United States v. Davis,

588 U.S. 445 (2019) ......................................................... 5

United States v. Dubois,

164 F.4th 418 (5th Cir. 2026) ....................................... 10

United States v. Dupree,

57 F.4th 1269 (11th Cir. 2023) ................................... 1, 8

United States v. Havis,

907 F.3d 439 (6th Cir. 2018) ........................................... 9

United States v. Hayes,

555 U.S. 415 (2009) ......................................................... 5

United States v. Holman,

171 F.4th 303 (4th Cir. 2026) ....................................... 10

United States v. Kozminski,

487 U.S. 931 (1988) ......................................................... 8

United States v. Lanier,

520 U.S. 259 (1997) ......................................................... 5

United States v. Nasir,

17 F.4th 459 (3d Cir. 2021) ............................................. 5

United States v. Riccardi,

989 F.3d 476 (6th Cir. 2021) ........................................... 1

United States v. Trumbull,

114 F.4th 1114 (9th Cir. 2024) ..................................... 12

United States v. Vargas,

74 F.4th 673 (5th Cir. 2023) ........................................... 8

United States v. Wiltberger,

18 U.S. (5 Wheat.) 76 (1820) .......................................... 6

United States v. Winstead,

890 F.3d 1082 (D.C. Cir. 2018) ...................................... 2

United Student Aid Funds, Inc. v. Bible,

136 S. Ct. 1607 (2016) ................................................... 18

VF Jeanswear LP v. EEOC,

589 U.S. 1312 (2020) ..................................................... 18

West Virginia v. EPA,

597 U.S. 697 (2022) ....................................................... 15

Whalen v. United States,

445 U.S. 684 (1980) ......................................................... 9

Whitman v. United States,

574 U.S. 1003 (2014) ..................................................... 15

Williams v. People of State of N.Y.,

337 U.S. 241 (1949) ....................................................... 16

Zuni Pub. Sch. 20 Dist. No. 89 v. Dep’t of

Educ.,

550 U.S. 81 (2007) ......................................................... 14

Constiutitonal Provisions

U.S. CONST. amend. V .......................................................... 7

U.S. CONST. amend. XIV ..................................................... 7

VII

Statutes

18 U.S.C. § 3553 ............................................................ 10, 13

28 U.S.C. § 991 .................................................................... 15

28 U.S.C. § 994 ................................................................ 8, 13

Other Authorities

Amy Coney Barrett,

Substantive Canons and Faithful

Agency,

90 B.U. L. REV. 109 (2010) ............................................. 6

Brett M. Kavanaugh,

Fixing Statutory Interpretation,

129 HARV. L. REV. 2118 (2016) .................................... 12

Cass R. Sunstein,

Chevron Step Zero,

92 VA. L. REV. 187 (2006) ............................................. 14

Douglas H. Ginsburg & Steven Menashi,

Our Illiberal Administrative Law,

10 N.Y.U. J.L. & LIBERTY 475 (2016) ......................... 17

Elena Kagan,

Presidential Administration,

114 HARV. L. REV. 2245 (2001) .................................... 15

Evan J. Criddle,

Chevron’s Consensus,

88 B.U. L. REV. 1271 (2008) ......................................... 15

THE FEDERALIST No. 47 ................................................... 17

HENRY FRIENDLY,

BENCHMARKS (1967) ...................................................... 6

VIII

Jeremy D. Rozansky,

Waiving Chevron,

85 U. CHI. L. REV. 1927 (2018) .................................... 16

John F. Manning,

Constitutional Structure and Judicial

Deference to Agency Interpretations of

Agency Rules,

96 COLUM. L. REV. 612 (1996) ..................................... 17

John S. Acton,

The Future of Judicial Deference to the

Commentary of the United States

Sentencing Guidelines,

45 HARV. J.L. & PUB. POL’Y 349 (2022) ........................ 2

Kristin E. Hickman,

The Need for Mead: Rejecting Tax

Exceptionalism in Judicial Deference,

90 MINN. L. REV. 1537 (2006) ...................................... 14

Lisa Schultz Bressman,

Beyond Accountability: Arbitrariness

and Legitimacy in the Administrative

State,

78 N.Y.U. L. REV. 461 (2003) ....................................... 13

Thomas Z. Horton,

Lenity Before Kisor: Due Process,

Agency Deference, and the

Interpretation of Ambiguous Penal

Regulations,

54 COLUM. J.L. & SOC. PROBS. 629

(2021) ................................................................................ 5

U.S. SENT’G GUIDELINES MANUAL

(U.S. SENT’G COMM’N 2025)......................................... 13

INTRODUCTION

AND INTERESTS OF AMICI CURIAE

It’s unusual to see the Government and a criminal

defendant agree (at least in part) on how to answer an

important criminal-sentencing question before this Court.

It’s stranger still to see them agree on the wrong

answer—with a court-appointed amicus pressing yet

another answer that’s no better. All three parties make

the same underlying mistake: they entertain the notion—

albeit to varying degrees—that courts could owe some

duty of deference to the Sentencing Commission’s

commentary on the Sentencing Guidelines in at least some

circumstances. As it turns out, courts owe no such duty at

all.

To be sure, both the Government and Petitioner are

right that an overly rigid reading of Stinson v. United

States, 508 U.S. 36 (1993), can’t supply the relevant rule

anymore. “Stinson adopted word for word the test” that

this Court has since labeled a “caricature” of

administrative deference. United States v. Dupree, 57

F.4th 1269, 1275 (11th Cir. 2023) (citing Kisor v. Wilkie,

588 U.S. 558 (2019)). Under Stinson, which demanded

near automatic deference to the Sentencing Commission’s

commentary, the Commission could have “adopt[ed] a new

legislative rule under the guise of reinterpreting an old

one”—all without going through any of the normal process

needed for such adoption. United States v. Riccardi, 989

F.3d 476, 485 (6th Cir. 2021). That freewheeling approach

confuses administrative authority with something more

like legislative power.

But merely disclaiming a strict view of Stinson (of the

sort applied by the lower court here) and then defaulting

to Kisor doesn’t go far enough—even as a fallback

position, as Petitioner presents it. Rather, “the Court can

and should return to first principles rather than

reflexively extend Kisor.” John S. Acton, The Future of

Judicial Deference to the Commentary of the United

States Sentencing Guidelines, 45 HARV. J.L. & PUB. POL’Y

349, 406 (2022). For one, Kisor does not expressly account

for the unique considerations that apply in the criminal

context—considerations like the rule of lenity. That rule

says that an ambiguous criminal provision must be read to

favor the defendant, not the administrative entity

purporting to apply it. Cf. United States v. Winstead, 890

F.3d 1082, 1092 n.14 (D.C. Cir. 2018) (noting that it was

“not obvious how the rule of lenity is squared with

Stinson’s description of the commentary’s authority to

interpret guidelines,” but confirming lenity still “has some

force”). For another, Kisor rests on increasingly shaky

footing, so it seems odd to extend it to new contexts like

this one. Loper Bright Enterprises v. Raimondo, 603 U.S.

369 (2024), of course, put Chevron deference to rest, and

that decision’s logic in turn “calls into question the

viability of [Kisor/]Auer deference.” United States v.

Boler, 115 F.4th 316, 322 n.4 (4th Cir. 2024). For several

good reasons—some tied to Loper Bright and some not—

the Court should bury Kisor, not reinvigorate it.

Recently, this Court and others have often been called

on to reaffirm the unobjectionable notion that judges—not

administrators (or commissioners)—should apply and

construe legal language. The Court should do so again

here. The Court should hold that Sentencing Guidelines

commentary is entitled to consideration only to the extent

it tends to persuade. Otherwise, courts need not defer to

that commentary at all.

SUMMARY OF ARGUMENT

I. Stinson should no longer be the rule; instead, lenity

should decide how the Guideline here applies. Kisor

(which construes the doctrines underlying Stinson)

forecloses administrative deference until a court has

exhausted the traditional tools of construction. Lenity—a

substantive canon much older than administrative

deference—is one of those tools. Deference to the

Commission, on the other hand, is not. Lenity thus applies

first: where a Sentencing Guideline remains genuinely

ambiguous after the canons are applied, the tie goes to the

defendant, not to the agency that drafted the gloss. That

ordering is compelled not only by lenity’s pedigree but

also by the values it secures—fair warning and due

process, protection against arbitrary enforcement, and a

separation of powers. The doctrine rightly keeps the

Commission from harshening criminal penalties without

notice-and-comment or congressional review.

II. If lenity does not resolve this case, administrative

deference should not, either. Sentencing is a judicial

function. Commanding district courts to defer to the

Commission’s commentary displaces district courts’

traditional work. It turns sentencing away from the

considered judgment of judges and toward informal

glosses from a body that neither wrote the governing

statutes nor answers, in any direct way, to those who did.

Interpretive commentary would become binding law in all

but name. And none of the usual justifications—expertise,

uniformity,

and

similar

considerations—support

deference here.

Instead, courts can appropriately

consider the Commission’s views without disrupting the

separation of powers by merely affording it the weight

that its persuasiveness demands.

ARGUMENT

When it comes to criminal statutes, regulations,

and guidelines, lenity should displace deference.

Both Petitioner and the Government assume that, if

Stinson falls away, then a lower court would defer to any

reasonable Sentencing Commission commentary when a

Sentencing Guideline is ambiguous. In that reading, the

Commission’s choice to define a large-capacity magazine

as anything larger than 15 rounds will prevail unless it’s

deemed “unreasonable” in some subjective sense. But

that’s not right. Lenity, not deference to commentary,

should be the ultimate tiebreaker when a court faces an

otherwise ambiguous Sentencing Guideline.

“[B]efore concluding that a rule is genuinely

ambiguous, a court must exhaust all the traditional tools

of construction.” Kisor, 588 U.S. at 575 (cleaned up);

accord OfficeMax, Inc. v. United States, 428 F.3d 583, 592

(6th Cir. 2005) (Sutton, J.) (“[T]he question whether a

statute is ambiguous arises after, not before, a court

applies traditional canons of interpretation.”). In other

words, when “the canons supply an answer,

[administrative deference] leaves the stage.” Epic Sys.

Corp. v. Lewis, 584 U.S. 497, 521 (2018) (cleaned up). And

“[a] finding of ambiguity can occur only at the end of [the]

usual interpretive process.” Gun Owners of Am., Inc. v.

Garland, 19 F.4th 890, 926 (6th Cir. 2021) (Murphy, J.,

dissenting).

“Among the traditional tools of statutory construction

the court must first exhaust … are the linguistic and

substantive canons of interpretation.” Am. Fed’n of Lab.

& Cong. of Indus. Orgs. v. Fed. Election Comm'n, 333 F.3d

168, 183 (D.C. Cir. 2003) (Henderson, J., concurring)

(cleaned up). Lenity is one such canon of construction.

See United States v. Lanier, 520 U.S. 259, 266 (1997);

Dixson v. United States, 465 U.S. 482, 500 n.19 (1984);

United States v. Campos-Serrano, 404 U.S. 293, 298

(1971). It says that “ambiguities about the breadth of a

criminal statute should be resolved in the defendant’s

favor.” United States v. Davis, 588 U.S. 445, 464 (2019).

The rule of 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).

So “[r]ather than defer to the commentary, [courts]

should use lenity to interpret ambiguous Guidelines.”

United States v. Nasir, 17 F.4th 459, 474 (3d Cir. 2021)

(Bibas, J., concurring). Courts have sometimes called

lenity a rule of last resort—but that’s not to say that it

must be considered only after every other possible option

under the sun has been exhausted. Rather, the rule

applies “when, after consulting traditional canons of

statutory construction,” the ambiguity remains. United

States v. Hayes, 555 U.S. 415, 429 (2009) (emphasis added)

(cleaned up); see also Moskal v. United States, 498 U.S.

103, 108 (1990) (explaining how courts should first look to

“language and structure, legislative history, and

motivating policies” (cleaned up)). But “deference to the

Sentencing Commission is not a traditional interpretative

tool. Lenity is. So it must come before deference.”

United States v. Chandler, 104 F.4th 445, 464 (3d Cir.

2024) (Bibas, J., dissenting); see also generally, e.g.,

Thomas Z. Horton, Lenity Before Kisor: Due Process,

Agency Deference, and the Interpretation of Ambiguous

Penal Regulations, 54 COLUM. J.L. & SOC. PROBS. 629

(2021) (explaining why, in order of priority, lenity is

applied before administrative deference). After all,

commentary may or may not purport to offer insight into

the original intent and meaning of the Guideline to which

it’s attached; thus, deference to that commentary may not

be interpretive at all.

Thus, the ordering of lenity over deference follows

from what each doctrine does. Deference asks who

decides what an ambiguous text means, while lenity helps

decide whether the text is ambiguous at all, and against

whom any residual doubt cuts. A canon that resolves

ambiguity cannot wait in line behind a doctrine that

presupposes it. Were it otherwise, the Commission could

manufacture the ambiguity that triggers deference and

then capture its benefit—an inversion this Court has

refused to tolerate in cognate settings.

And the Court need not fear a little lenity, as the

concept has a substantial history. It is the modern label

for one of the common law’s oldest ideas—that “penal laws

should be construed strictly.” The Adventure, 1 F. Cas.

202, 204 (CC Va. 1812) (No. 93) (Marshall, C.J.). Our

country’s courts have long felt an “instinctive distaste

against men languishing in prison unless the lawmaker

has clearly said that they should.” HENRY FRIENDLY,

BENCHMARKS 209 (1967). In fact, Chief Justice Marshall

once observed that this distaste is “perhaps not much less

old than construction itself.” United States v.

Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820). Likewise,

Justice Scalia lauded lenity as a “venerable” and “ancient

canon.” See Bryan v. United States, 524 U.S. 184, 205

(1998) (Scalia, J., dissenting); Taylor v. United States, 495

U.S. 575, 603 (1990) (Scalia, J., concurring in part and

concurring in the judgment). Lenity, then, holds an

established place in American jurisprudence. See Amy

Coney Barrett, Substantive Canons and Faithful Agency,

90 B.U. L. REV. 109, 128 (2010) (recognizing lenity as one

of “the oldest canons of interpretation”).

In contrast, administrative deference has a far more

“recent provenance.” Aposhian v. Wilkinson, 989 F.3d

890, 899 (10th Cir. 2021) (Tymkovich, J., dissenting). Less

than a century ago, the Court was still wrestling over

whether agencies could decide questions of fact, never

mind law. Crowell v. Benson, 285 U.S. 22 (1932). Before

Chevron came along about 40 years ago, the best

deference agencies received was only proportional to the

persuasiveness of their argument. Skidmore v. Swift &

Co., 323 U.S. 134 (1944). And unlike lenity—which has

remained largely stable over the years—administrative

deference continues to shift and change. Chevron

deference has come and gone—its demise hastened in part

because of confusion over its application in the criminal

space. Loper Bright, 603 U.S. at 405. And what’s now

come to be known as Kisor deference has been in a

constant state of flux for a few decades now, too. The

Court would thus be ill-advised to weaken a doctrine

tracing its roots to Blackstone for the sake of a doctrine

drawing from a “dramatic shift in power over the last 50

years.” City of Arlington v. FCC, 569 U.S. 290, 327 (2013)

(Roberts, C.J., dissenting).

But applying lenity isn’t just “oldest doctrine wins.”

Putting lenity at the forefront advances some of our

nation’s most important values. Three come immediately

to mind.

First, lenity is “not merely a convenient maxim”; “it is

rooted in fundamental principles of due process.” Dunn

v. United States, 442 U.S. 100, 112 (1979). The doctrine

ensures that we know what specific conduct is criminal

and what punishment will follow from it. See U.S. CONST.

amends. V, XIV. Citizens deserve “fair warning” of what

might be criminal in “language that the common world will

understand.” McBoyle v. United States, 283 U.S. 25, 27

(1931). Clear laws and penalties promote a stable society.

The Sentencing Guidelines are already murky enough;

layering on an additional level of commentary will only

worsen the “clarity” problem inherent in the system. See

United States v. Campbell, 22 F.4th 438, 446 (4th Cir.

2022) (stressing the “individual liberty” interests at stake

and, relying in part on lenity, declining to defer to

Guidelines commentary). But commentary should not be

permitted to enlarge the conduct that triggers a higher

sentence without clear notice.

Second, lenity promotes the rule of law. It helps

“minimize the risk of selective or arbitrary enforcement.”

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

contrast, allowing Kisor to supersede lenity commands

the opposite result, with the Sentencing Commission able

to change the penalties for crimes without the notice-andcomment, cleaner vote counts, and congressional review

that the statute expects. See 28 U.S.C. § 994(a)(1), (p).

Years-long variations in recommended sentences

shouldn’t develop on the fly. See United States v. Vargas,

74 F.4th 673, 709 (5th Cir. 2023) (Elrod, J., dissenting in

part) (citing similar considerations as a reason to apply

lenity to Sentencing Guidelines commentary). And given

how the Guidelines serve as “the starting point and the

initial benchmark” of every sentencing proceeding, they

are simply too important for ad hoc administration. Gall

v. United States, 552 U.S. 38, 49 (2007). Indeed, even

Kisor recognizes agency constructions must be

“authoritative” before deference could enter the picture,

and it’s debatable whether commentary truly is. Dupree,

57 F.4th at 1280 (Pryor, C.J., concurring).

And third, lenity serves important separation of

powers purposes. “Application of the rule of 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). Separation is important because of the different

competencies of the relevant players. Congress holds “the

power to define criminal offenses and … prescribe the

punishments to be imposed upon those found guilty of

them.” Whalen v. United States, 445 U.S. 684, 689 (1980).

That’s so because “criminal punishment usually

represents the moral condemnation of the community,”

and the democratically accountable legislature has a

better sense of those feelings. United States v. Bass, 404

U.S. 336, 348 (1971). Meanwhile, “criminal law and the

interpretation of criminal statutes [and guidelines] is the

bread and butter of the work of federal courts.” Dolfi v.

Pontesso, 156 F.3d 696, 700 (6th Cir. 1998). And

“sentencing has been and should remain primarily a

judicial function.” Mistretta v. United States, 488 U.S.

361, 390 (1989) (cleaned up).

So courts are better

positioned to wrestle down messy draftsmanship in the

Guidelines. Thus, lenity avoids a situation where these

three distinct functions—promulgation, construction, and

execution—collapse into one. That avoidance is key when

it comes to commentary, as the Sentencing Commission is

not subject to traditional executive-branch supervision or

directly answerable to Congress or the Judiciary. It acts

all on its own.

In short, applying Kisor deference to a circumstance

like this one not only “threatens the separation of powers

but also endangers fundamental legal precepts”—lenity

included. United States v. Havis, 907 F.3d 439, 451 (6th

Cir. 2018) (Thapar, J., concurring), vacated on reh’g en

banc, 927 F.3d 382 (6th Cir. 2019). The Court should avoid

that result by applying lenity to favor Petitioner’s reading

of this “genuinely ambiguous” Guidelines provision.

United States v. Holman, 171 F.4th 303, 314 (4th Cir.

2026).

II.

Lenity aside, the Court should not embrace any

administrative deference in this context.

Administrative deference shouldn’t play any role in

this case even if one doesn’t think lenity wins the day.

Four justices asked years back whether “anyone would

really think” that a judge complied with federal

sentencing statutes “[i]f the judge said he was sending a

defendant to prison for longer than he believed

appropriate only in deference to the government’s

‘reasonable’ sentencing recommendation.” Kisor, 588

U.S. at 606 (Gorsuch, J., concurring in judgment). The

question back then was meant to be rhetorical, but the

parties have now answered it with a collective “Yes.”

That’s wrong.

At least outside mandatory sentencing statutes, the

district court is the one that’s supposed to pick a “sentence

sufficient, but not greater than necessary, to comply with”

Congress’s identified purposes. 18 U.S.C. § 3553(a). “The

choice of pains and penalties, when choice is committed to

the discretion of the court, is part of the judicial function.”

Hill v. United States ex rel. Wampler, 298 U.S. 460, 464

(1936). So a district court “generally enjoy[s] discretion

over sentencing,” Esteras v. United States, 606 U.S. 185,

198 (2025), only “constrained at its outer limits by the facts

alleged in the indictment and found by the jury,”

Apprendi v. New Jersey, 530 U.S. 466, 483 n.10 (2000).

“The Constitution requires that the terms of a defendant’s

sentence be decided by an Article III court in part out of

solicitude for the liberty interests of the defendant.”

United States v. Dubois, 164 F.4th 418, 425 (5th Cir. 2026)

(cleaned up).

But the Guidelines effectively impose their own

constraint on that discretionary work, as district courts

“must begin their analysis with the Guidelines and remain

cognizant of them throughout the sentencing process.”

Peugh v. United States, 569 U.S. 530, 541 (2013) (cleaned

up). Not only must they properly calculate the Guidelines

ranges, but district judges must also provide special

justification when a sentence falls outside them. Gall, 552

U.S. at 47. In that way, though the Guidelines have been

advisory for a couple decades now, the Guidelines continue

to “serve as a meaningful benchmark” that guides the

sentencing process. Rosales-Mireles v. United States, 585

U.S. 129, 133 (2018) (cleaned up). Even that description

might really be an understatement; their anchoring effect

means they work more as a “lodestone” or “foundation” in

federal sentencing. Hughes v. United States, 584 U.S. 675,

685 (2018) (cleaned up); see also, e.g., Molina-Martinez v.

United States, 578 U.S. 189, 199 (2016). And that’s not

even to mention the effect that Guidelines calculations

have on plea agreements and the like—where defendants

need to know what exposure is realistically on the table.

So what the Guidelines say and mean drives a lot of the

daily sentencing work that’s done in federal courts—one

could say they “form[] the basis for an enforcement

action.” Kisor, 588 U.S. at 584 (cleaned up).

Yet if district courts are meant to defer to even the

commentary on those Guidelines, then federal sentences

become less and less about the conclusions of judges and

legislators and more and more about the informal insights

offered by a select commission. District court judges will

spend more time parsing the words of administrators and

less time considering the specific facts and circumstances

that might drive an appropriate sentence in a given case—

the classic work of sentencing. Interpretive provisions

become de facto binding law, whatever disclaimer might

be offered saying otherwise. For “if an interpretive rule

gets deference, the people are bound to obey it on pain of

sanction, no less surely than they are bound to obey

substantive rules.” Perez v. Mortg. Bankers Ass’n, 575

U.S. 92, 110 (2015) (Scalia, J., concurring in the judgment).

And as a result, district courts abdicate essential functions

of interpreting and sentencing.

As Loper Bright explained, this whole exercise that

district courts would be asked to undertake under Kisor—

searching for just enough “ambiguity” and then

evaluating “reasonableness”—also might be something of

a farce. See United States v. Trumbull, 114 F.4th 1114,

1126 (9th Cir. 2024) (Bea, J., concurring in the judgment).

“Determining the level of ambiguity in a given piece of

statutory [or regulatory] language is often not possible in

any rational way.” Brett M. Kavanaugh, Fixing Statutory

Interpretation, 129 HARV. L. REV. 2118, 2137 (2016).

“Such an impressionistic and malleable concept cannot

stand as an every-day test for allocating interpretive

authority.” Loper Bright, 603 U.S. at 375 (cleaned up).

And finding a reading “permissible” or “reasonable” even

if not aligned with the text’s “single, best meaning” doesn’t

make much sense, either. Id. at 400.

Better to have district courts take the Guidelines on

their own terms, using the same “interpretive tools” that

this Court said were good enough in Loper Bright. That

approach would also encourage the Commission to be

“clear and definite so that affected parties will have

adequate notice concerning the [Commission]’s

understanding of the law.” Thomas Jefferson Univ. v.

Shalala, 512 U.S. 504, 525 (1994) (Thomas, J., dissenting).

There’s also the problem of delegation and authority.

At least with the Guidelines, more direct congressional

oversight and clearer congressional commands make the

focus on the Guidelines an arguable extension of

congressional will. But that argument holds less water

when it comes to commentary—which is not directly

supervised and not even directly mentioned in the

Commission’s enabling statute. See 28 U.S.C. § 994; cf.

Perez, 575 U.S. at 111 (Scalia, J., concurring in the

judgment) (“[G]iving [an agency] deference allows the

agency to control the extent of its notice-and-commentfree domain.”); see also, e.g., Lisa Schultz Bressman,

Beyond Accountability: Arbitrariness and Legitimacy in

the Administrative State, 78 N.Y.U. L. REV. 461, 552

(2003). Certainly Congress didn’t expressly instruct that

the Commission should be given deference; in the one

relevant instance when it mentioned commentary, it says

only that district courts can “consider” commentary in

deciding whether a given Guideline accounted for a

particular circumstance present in a specific case. 18

U.S.C. § 3553(b)(1). In fact, not even the Guidelines

themselves contemplate deference for the commentary.

U.S. SENT’G GUIDELINES MANUAL § 1B1.7 (U.S. SENT’G

COMM’N 2025). And certainly no implied delegation to the

Commission can be found in an ambiguity of the

Commission’s own making.

Nor can one find

congressional directives as to what commentary should

look like. Contrast with Touby v. United States, 500 U.S.

160, 167 (1991) (upholding the Attorney General’s

scheduling power where the statute contained “multiple

specific restrictions on the Attorney General's discretion

to define criminal conduct”). In other words, nothing

signals that Congress intended that the Commission,

rather than a court, should function as the primary

interpreter of a particular Guideline.

“[P]ractical agency expertise” has also been offered as

a “principal justification[]” behind administrative

deference in other cases, but it does not support deference

here. Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S.

633, 651-52 (1990); see also Kisor, 588 U.S. at 571. “Unlike

environmental regulation or occupational safety, criminal

law … is the bread and butter of the work of federal

courts.” Dolfi, 156 F.3d at 700. Determining what acts

call for greater sanction is not a judgment requiring

technical analysis or skill in the usual sense. See also

Kristin E. Hickman, The Need for Mead: Rejecting Tax

Exceptionalism in Judicial Deference, 90 MINN. L. REV.

1537, 1599 (2006). “[S]aid a bit differently,” applying

criminal laws and sentences “involves balancing and

rebalancing over time complex and oft-competing ideas

about social policy and moral culpability—about the

criminal law’s practical effectiveness and its ethical

foundations.” Kahler v. Kansas, 589 U.S. 271, 280 (2020)

(cleaned up). Although the members of the Commission

are no doubt learned and respected, the President and

Congress who appointed and confirmed each district court

judge have recognized those judges’ expertise, too. And

though the Commission may know more about its own

intent behind a Guideline, that intent is beside the point.

The question at sentencing is what the Guideline says, not

what its drafters privately meant—for “[c]itizens arrange

their affairs not on the basis of their legislators’

unexpressed intent, but on the basis of the law as it is

written and promulgated.” Zuni Pub. Sch. 20 Dist. No. 89

v. Dep’t of Educ., 550 U.S. 81, 119 (2007) (Scalia, J.,

dissenting).

Likewise, deference to agencies has been pushed by

those who think executive administrators are more

politically accountable to Congress and the broader

electorate.

And admittedly, courts lack “electoral

legitimacy” in interpreting laws and regulations. Cass R.

Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 196-97

(2006). But it’s tough to argue that the Sentencing

Commission is much better, seeing as how they sit

distantly from the President who appointed them—

especially those members who are judges—and are

ostensibly shielded by for-cause removal protections. See

28 U.S.C. § 991(a); cf. Elena Kagan, Presidential

Administration, 114 HARV. L. REV. 2245, 2377 (2001)

(noting that less deference may be appropriate for socalled independent agencies). And anyway, “[d]irect

presidential

policymaking

agency

statutory

administration is exceptional,” and “the degree to which

any single agency statutory interpretation impacts the

President’s approval rating may be negligible.” Evan J.

Criddle, Chevron’s Consensus, 88 B.U. L. REV. 1271, 128990 (2008).

And really, accountability is the wrong thing to think

about when wrestling with questions of sentencing. The

Constitution did not entrust an individual defendant’s

liberty to whichever body best tracks majority sentiment.

Yes, at the macro level, the Constitution granted the

power to fix crimes to Congress. Whitman v. United

States, 574 U.S. 1003, 1005 (2014) (Scalia, J., opinion

respecting the denial of certiorari) (“[O]nly the legislature

may define crimes and fix punishments.”). But at the

micro level (in an individual case), it entrusted a

defendant’s liberty to a court precisely because a court

dispassionately answers to the law.

“Political

accountability” seems a feeble benefit when liberty is at

risk; trading the latter for the former could lead to mob or

“minister[ial]” rule over a criminalized minority. West

Virginia v. EPA, 597 U.S. 697, 737 (2022) (Gorsuch, J.,

concurring) (quoting THE FEDERALIST NO. 11, at 85 (A.

Hamilton) (C. Rossiter ed. 1961)). And crimes and

sentences should not be subject to the ever-shifting

political prerogatives of one administration versus

another, as the Court has recognized “the importance of a

consistent interpretation of criminal statutes.” Jean v.

Nelson, 472 U.S. 846, 856 n.3 (1985). For another, “[t]he

most visible agency actors and agency actions are the

most accountable to the electorate and to Congress.”

Jeremy D. Rozansky, Waiving Chevron, 85 U. CHI. L.

REV. 1927, 1963 (2018). The Commission’s decisions are

unlikely to garner much attention.

Political

accountability, then, is a challenging justification for

deference to the Commission here.

The need for uniformity is also no real justification

here, as Loper Bright rightly saw no value in “uniformity

for uniformity’s sake over the correct interpretation.”

Loper Bright, 603 U.S. at 403. Strict uniformity is a bad

fit for criminal sentencing in general, seeing as how a

sentencing judge “must make an individualized

assessment based on the facts presented.” Gall, 552 U.S.

at 50; see also Rita v. United States, 551 U.S. 338, 348

(2007) (distinguishing between the “retail” and

“wholesale” objectives of district courts and the

Commission, respectively). “The belief no longer prevails

that every offense in a like legal category calls for an

identical punishment.” Williams v. People of State of

N.Y., 337 U.S. 241, 247 (1949). The Commission cannot

lock every district court in on every fine point; a little

disuniformity must be tolerated to respect the “traditional

discretion of sentencing courts” that Congress “expressly

preserved.” Pepper v. United States, 562 U.S. 476, 489

(2011).

But maybe most importantly, by giving “controlling

weight” to Commission commentary, courts would also

“violate a fundamental principle of separation of powers—

that the power to write a law and the power to interpret it

cannot rest in the same hands.” Decker v. Nw. Env’t Def.

Ctr., 568 U.S. 597, 619 (2013) (Scalia, J., concurring in part

and dissenting in part); see also THE FEDERALIST No. 47,

at 301 (J. Madison) (C. Rossiter ed. 1961) (“The

accumulation of all powers, legislative, executive, and

judiciary, in the same hands ... may justly be pronounced

the very definition of tyranny.”). And this deference “to

an agency’s interpretation of its own rule encourages the

agency to enact vague rules which give it the power, in

future adjudications, to do what it pleases.” Talk Am.,

Inc. v. Mich. Bell Tel. Co., 564 U.S. 50, 69 (2011) (Scalia,

J., concurring). Thus, a clear separation of powers begins

to break down. See, e.g., Douglas H. Ginsburg & Steven

Menashi, Our Illiberal Administrative Law, 10 N.Y.U.

J.L. & LIBERTY 475, 513 (2016) (“Because interpretation

may work a significant change, the agency’s power to

interpret—subject only to deferential review—is akin to

the power to rewrite the rule. This [is a] violation of the

separation between lawmaking and law elaboration.”);

John F. Manning, Constitutional Structure and Judicial

Deference to Agency Interpretations of Agency Rules, 96

COLUM. L. REV. 612, 638 (1996) (identifying the

“separation of lawmaking from law-exposition” as a

“crucial constitutional commitment” that this kind of

deference contradicts).

The careful reader might object that many of these

things were said ahead of Kisor—yet Kisor declined to

overturn this brand of deference all the same. But Kisor

had to confront the doctrine of stare decisis, which proved

decisive. Kisor, 588 U.S. at 586-87; see also id. at 590-91

(Roberts, C.J., concurring in part) (noting agreement

because “overruling those precedents is not warranted”).

Stare decisis plays no role here—at least when it comes to

Kisor, apart from Stinson—as the parties are asking the

Court to choose a new rule. So the Court is free to choose

the better rule. And the landscape has changed since

Kisor came down. Kisor itself narrowed this deference

doctrine to near vanishing. Since then, decisions like

Loper Bright and West Virginia have only further

undermined the idea that agencies can wield broad power

ungrounded in any specific congressional delegation.

Unsurprisingly, then, “[t]his doctrine,” too, “has rightly

fallen out of favor in recent years, as it directly conflicts

with the constitutional duty of a judge to faithfully and

independently interpret the law.” VF Jeanswear LP v.

EEOC, 589 U.S. 1312, 1316 (2020) (Thomas, J., dissenting

from denial of certiorari). So when it comes to Kisor,

“[a]ny reader of this Court’s opinions should think that the

doctrine is on its last gasp.” United Student Aid Funds,

Inc. v. Bible, 136 S. Ct. 1607, 1608 (2016) (Thomas, J.,

dissenting from denial of certiorari).

And that’s not to say that courts should just ignore the

Commission’s commentary entirely.

“[T]he …

interpretations and opinions of [the Commission], while

not controlling upon the courts by reason of their

authority, do constitute a body of evidence and informed

judgement to which courts and litigants may properly

resort for guidance.” Skidmore, 323 U.S. at 140. But that

evidence should only be given the “weight” that its

reasoning deserves. Id. In other words, a district court

should construe a Guideline as it construes any other legal

text: it should exhaust the ordinary tools of interpretation

and credit the Commission’s commentary only so far as its

reasoning persuades. The answer shouldn’t be automatic.

CONCLUSION

The Court should vacate and remand with instructions

to apply the Sentencing Guidelines without giving

deference to the Sentencing Commission’s commentary.

Respectfully submitted.