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

No. 25-5343

IN THE

Supreme Court of the United States

_________________________

KENDRICK JARRELL BEAIRD,

Petitioner,

v.

UNITED STATES,

Respondent.

_________________________

On Writ of Certiorari to the

U.S. Court of Appeals for the Fifth Circuit

AMICUS CURIAE BRIEF OF THE

NEW CIVIL LIBERTIES ALLIANCE

IN SUPPORT OF PETITIONER

Casey B. Norman

Counsel of Record

Kara M. Rollins

Faith A. Scrivo

Mark S. Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

4250 N. Fairfax Dr., Suite 300

Arlington, VA 22203

(202) 869-5210

Casey.Norman@NCLA.legal

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

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

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

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

I. STINSON DEFERENCE IS A “DOCTRINAL DINOSAUR”

THAT MUST BE OVERRULED .................................. 6

A. Kisor Pushed Auer Deference to the Brink

of Extinction ................................................. 9

B. Loper Bright/Relentless’s Reasoning

Compels the Overruling of Stinson ........... 16

II. INCREASING CRIMINAL SENTENCES BASED ON

DEFERENCE IS UNCONSTITUTIONAL ................... 19

A. Stinson’s Particular Outcome Did Not

Implicate the Rule of Lenity ...................... 20

B. Deference to the Commentary to

Unambiguous Guidelines Violates Judicial

Independence and Due Process ................. 25

1. Deference Undermines Article III

Judicial Independence ........................... 25

2. Stinson Deference Violates Due Process

of Law by Institutionalizing Bias .......... 29

CONCLUSION .......................................................... 31

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abramski v. United States,

573 U.S. 169 (2014) ........................................... 15, 22

Babbitt v. Sweet Home Chapter of Cmtys. for

a Great Or.,

515 U.S. 687 (1995)................................................ 21

Bifulco v. United States,

447 U.S. 381 (1980)................................................ 22

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

393 U.S. 145 (1968)................................................ 29

Esquivel-Quintana v. Sessions,

581 U.S. 385 (2017)................................................ 21

Gall v. United States,

552 U.S. 38 (2007).................................................. 27

Guedes v. ATF,

140 S. Ct. 789 (2020).............................................. 20

Kisor v. Wilkie,

588 U.S. 558 (2019).... 3, 4, 7, 8, 9, 10, 11, 12, 21, 24

Liparota v. United States,

471 U.S. 419 (1985)................................................ 23

Loper Bright Enters. v. Raimondo and

Relentless v. Dep't of Com.,

603 U.S. 369

(2024)...................... 2, 4, 5, 7, 8, 9, 16, 17, 18, 25, 27

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ....................... 2, 15, 28

iii

Marshall v. Jerrico, Inc.,

446 U.S. 238 (1980)................................................ 29

Masterpiece Cake Shop, Ltd. v. Colo. C.R. Comm’n,

584 U.S. 617 (2018)................................................ 29

McBoyle v. United States,

283 U.S. 25 (1931).................................................. 23

Mistretta v. United States,

488 U.S. 361 (1989) ................................................. 14

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015).................................................. 17

Prohibition del Roy (1608)

77 Eng. Rep. 1342; 12 Co. Rep. 64 ........................ 25

Skilling v. United States,

561 U.S. 358 (2010)................................................ 21

Solid Waste Agency of N. Cook Cnty. v. U.S. Army

Corps of Eng’rs,

531 U.S. 159 (2001)................................................ 21

State of Georgia v. Brailsford,

2 U.S. (2 Dall.) 415 (1793) ..................................... 26

Stinson v. United States,

508 U.S. 36 (1993).................. 2, 3, 10, 13, 19, 20, 30

The Julia,

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

Tumey v. Ohio,

273 U.S. 510 (1927)................................................ 30

United States v. Bass,

404 U.S. 336 (1971).......................................... 23, 24

iv

United States v. Beaird,

No. 24-10764, 2025 WL 1410410

(5th Cir. May 15, 2025)............................................ 13

United States v. Burr,

25 F. Cas. 2 (C.C.D. Va. 1807)............................... 27

United States v. Campbell,

22 F.4th 438 (4th Cir. 2022) .............................. 15, 28

United States v. Castillo,

69 F.4th 648 (9th Cir. 2023) .................................. 17

United States v. Chandler,

104 F.4th 445 (3d Cir. 2024) .................................... 22

United States v. Dupree,

57 F.4th 1269 (11th Cir. 2023)........................... 12, 14

United States v. Faison,

No. 8:19-cr-00027, 2020 WL 815699

(D. Md. Feb. 18, 2020) ........................................... 22

United States v. Havis,

907 F.3d 439 (6th Cir. 2018) ..................... 15, 20, 24

United States v. Martin,

119 F.4th 410 (5th Cir. 2024)............................. 10, 12

United States v. Nasir,

17 F.4th 459 (3d Cir. 2021) ................ 6, 20, 22, 23, 24

United States v. Vargas,

74 F.4th 673 (5th Cir. 2023) .............................. 10, 13

United States v. Wiltberger,

18 U.S. (5 Wheat.) 76 (1820) ........................... 21, 24

Whitman v. United States,

574 U.S. 1003 (2014).................................... 5, 18, 21

v

Statutes

5 U.S.C. § 706 ............................................................ 16

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

Constitutional Provisions

U.S. Const. art. III, § 1 .............................................. 26

Other Authorities

1 Records of the Federal Convention of 1787

(Max Farrand ed., Yale Univ. Press 1911) ........... 26

2 Records of the Federal Convention of 1787

(Max Farrand ed., Yale Univ. Press 1911) ........... 26

A Discourse upon the Exposicion & Understandinge

of Statutes

(Samuel E. Thorne ed. 1942) ................................. 22

James Iredell, To the Public,

N.C. Gazette (Aug. 17, 1786) ................................. 26

Philip Hamburger,

Chevron Bias, 84 GEO. WASH. L. REV. 1187

(2016)...................................................................... 30

Philip Hamburger,

Is Administrative Law Unlawful? (2014) ............. 29

Philip Hamburger,

Law and Judicial Duty (2008) ........................ 25, 26

The Declaration of Independence (U.S. 1776).......... 25

The Federalist No. 10

(James Madison) (Cooke ed. 1961)........................ 29

The Federalist NO. 78

(Alexander Hamilton) (Cooke ed. 1961) ................ 26

1

INTEREST OF AMICUS CURIAE 1

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

nonpartisan, nonprofit civil rights organization and

public-interest law firm. Professor Philip Hamburger

founded NCLA to challenge multiple constitutional

defects in the modern administrative state through

original litigation, amicus curiae briefs, and other

forms of advocacy.

The “civil liberties” of the organization’s name

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

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

tried in front of impartial judges who provide their

independent judgments on the meaning of the law.

Yet these selfsame civil rights are also very

contemporary—and in dire need of renewed

vindication—precisely because Congress, executive

branch officials, administrative agencies, and even

the courts have neglected them for so long.

NCLA aims to defend civil liberties—primarily

by asserting constitutional constraints on the modern

administrative state. Although Americans still enjoy

a shell of their Republic, a very different sort of

government has developed within it—a type that the

Constitution was designed to prevent.

This

1 No party’s counsel authored any portion of this brief, and no

party, party counsel, or person other than amicus curiae made a

monetary contribution intended to fund this brief’s preparation

or submission.

2

unconstitutional state within the Constitution’s

United States is the focus of NCLA’s concern.

NCLA is deeply disturbed by the widespread

practice of extending judicial “deference” to the

United States Sentencing Commission’s commentary

to the U.S. Sentencing Guidelines. This deference

regime—now entrenched in half the circuits—raises

grave constitutional problems that this Court never

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

(1993), and that it has not expressly addressed since.

However, in Kisor and, most recently, in Loper Bright

Enterprises v. Raimondo and Relentless v. Department

of Commerce, 603 U.S. 369, 413 (2024) (“Loper

Bright/Relentless”), this Court made it unmistakably

clear that Article III judges may not abdicate their

duty of independent judgment by reflexively deferring

to another branch’s interpretation of the law.

Deference doctrines that require courts to enforce an

agency’s view of its own rule—even when the text of

the rule itself is unambiguous and even when the

agency’s interpretation is not the best reading—

violate the Constitution’s separation of powers, deny

defendants the due process of law protections owed in

criminal cases, and erode the Judiciary’s exclusive

responsibility “to say what the law is.” Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

SUMMARY OF ARGUMENT

This Court should repudiate Stinson deference,

especially where it increases the length of criminal

sentences, and reiterate that courts must exercise

their independent judgment in criminal sentencing,

3

rather than reflexively deferring to the Federal

Sentencing Guidelines commentary.

In 1993, the Court ruled in Stinson v. United

States that Article III courts must defer to the United

States Sentencing Commission’s commentary to its own

Sentencing Guidelines unless that commentary “is

inconsistent with, or a plainly erroneous reading of, that

guideline.” 508 U.S. at 38. Stinson reasoned that the

Sentencing Commission’s Guidelines “are the equivalent

of legislative rules adopted by federal agencies,” and thus

that the Commission’s commentary interpreting those

Guidelines warrants the same controlling weight as an

agency’s interpretation of its own regulation (thereby

adopting what would later come to be known as Auer

deference).2 Id. at 45. That reasoning has not withstood

this Court’s subsequent decisions in Kisor and Loper

Bright/Relentless, which have hollowed out the

doctrinal underpinnings of both Auer and Stinson

deference, reducing it to “the role of a tin god—

officious, but ultimately powerless.” Kisor v. Wilkie,

588 U.S. 558, 631 (2019) (Gorsuch, J., concurring).

In Kisor, although a plurality opinion, every

Justice agreed that it was necessary to “reinforce” and

“further develop” the limitations on the deference that

courts purportedly owe to an agency’s interpretation of

its own rules. Id. at 563, 574-75; id. at 591 (Roberts,

2 The doctrine of judicial deference to an agency’s construction of

its own regulations has borne different titles over time—

Seminole Rock deference, Auer deference and, most recently,

Kisor deference. For purposes of clarity, amicus refers to it as

Auer deference.

4

C.J., concurring); id. at 631 (Gorsuch, J., concurring

in judgment); id. at 631-32 (Kavanaugh, J.,

concurring in judgment). Writing for the plurality,

Justice Kagan conceded that the Court had in the past

applied Auer deference “without significant analysis

of the underlying regulation,” characterizing the

Court’s former approach as a “reflexive” “caricature”

of the doctrine. Id. at 574. Rejecting this reflexive

form of deference, Kisor instructed that courts must

first exhaust all the traditional tools of construction to

determine whether a rule is “genuinely ambiguous”

before even considering whether deference is

warranted. Id.

That same principle—that courts must exercise

their

independent

judgment,

rather

than

automatically defer to agency interpretations—

animated

this

Court’s

decision

in

Loper

Bright/Relentless. Overruling Chevron, U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S.

837 (1984), the Court held that courts must exercise

independent judgment to identify the “single, best

meaning” of the law, regardless of agency

involvement. 603 U.S. at 400. Those holdings leave

no room for Stinson’s contrary command that judges

reflexively yield to Sentencing Commission

commentary, including when the plain text of the

Guidelines is unambiguous.

The continued application of Stinson deference

is not only doctrinally unsound—it is constitutionally

indefensible.

Unlike the Sentencing Guidelines

themselves, which must undergo notice-and-comment

rulemaking and congressional review, the Sentencing

5

Commission’s Guidelines commentary is subject to no

such requirements. Yet courts still afford these

informal

interpretations

controlling

weight,

effectively empowering the Commission to increase

criminal punishment by agency fiat. This judicial

abdication offends the rule of lenity, principles of due

process of law, and the independence of the judicial

office. And in the criminal sphere, deference is doubly

perverse: the rule of lenity requires that ambiguities

in penal laws be resolved “against the government,”

yet reflexive deference to agency interpretations

inverts that principle, permitting the government “to

penalize conduct Congress never clearly proscribed.”

Id. at 434-35 (Gorsuch, J., concurring).

These concerns strike with particular force in

the Sentencing Guidelines context. Treating the

Sentencing Commission’s commentary as the

controlling interpretation of the Guidelines does more

than call for deference to expertise—it “replac[es] the

doctrine of lenity with a doctrine of severity.”

Whitman v. United States, 574 U.S. 1003, 1005 (2014)

(Scalia, J., respecting the denial of certiorari). Such

deference diminishes the judicial office and with it, a

key structural safeguard that the Framers erected as

a bulwark against tyranny.

Mr. Beaird’s case gives this Court a critical

opportunity to resolve once and for all that Stinson

deference has no place in criminal sentencing. The

Commission’s commentary to the Guidelines may help

inform judicial interpretation, but it may not displace it.

So long as Stinson remains in force, defendants across

the country will face criminal punishment shaped not by

6

a court’s independent interpretation of the Guidelines,

but by reflexive deference to commentary that Congress

never reviewed and that the Commission never subjected

to the safeguards required for the Guidelines themselves

(and amendments to them). Whatever interest the

Guidelines serve in promoting sentencing uniformity,

that interest cannot justify binding Article III courts to

the Commission’s informal commentary—particularly

commentary that purports to “interpret” a Guideline but

in fact defines or expands the Guideline’s operative

reach, increasing punishment beyond what the

Guideline’s text provides.

Uniformity purchased at the price of judicial

abdication in criminal sentencing is not a form of

uniformity that the Constitution permits. The lodestar

of judicial interpretation must remain the text of the law

itself—not an agency’s commentary to it. See United

States v. Nasir, 17 F.4th 459, 472 (3d Cir. 2021) (Bibas,

J., concurring). Stinson deference erodes the separation

of powers, gravely endangers the individual liberty of

American citizens, and distorts the independent judicial

office enshrined in Article III of the Constitution. It is

high time that this Court put it to rest.

ARGUMENT

I.

STINSON DEFERENCE IS A “DOCTRINAL

DINOSAUR” THAT MUST BE OVERRULED

Stinson deference’s foundation is built on the

deference doctrine first announced in Bowles v.

Seminole Rock & Sand Co., 325 U.S. 410 (1945), and

later reaffirmed in Auer v. Robbins, 519 U.S. 452

7

(1997)—but that foundation has crumbled. In Kisor,

this Court made clear that Auer deference is not

reflexive: a court must first deploy all the traditional

tools of construction—and only if “genuine ambiguity”

remains may the court even consider whether

deference is warranted. 588 U.S. at 574-75. Even

then, an agency’s interpretation must still be

“reasonable,” and its “character and context” must

show that it is entitled to “controlling weight.” Id. at

575-76. Kisor thus reaffirmed that Article III courts

bear the constitutional duty to interpret the law

independently.

See id. at 632 (Kavanaugh, J.,

concurring) (“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,” and thus

“courts will have no reason or basis to put a thumb on

the scale in favor of an agency when courts interpret

agency regulations.”).

That same principle—that courts must exercise

their

independent

judgment,

rather

than

automatically defer to agency interpretations—

animated

this

Court’s

decision

in

Loper

Bright/Relentless. Overruling Chevron deference, the

Court held that courts must exercise independent

judgment to identify the “single, best meaning” of the

law—regardless of agency involvement.

Loper

Bright/Relentless, 603 U.S. at 400 (“[T]here is a best

reading [of the law] all the same—the reading the

court would have reached if no agency were involved.”

(citation omitted)); see also id. (“It … makes no sense

to speak of [an agency’s] ‘permissible’ interpretation

that is not the one the court, after applying all

8

relevant interpretive tools, concludes is best.”). To be

sure, Stinson deference does not arise under the APA

in the same way that Chevron deference did, but the

absence of an APA-based cause of action does not

license courts to abandon their fundamental duty—

rooted in Article III and reaffirmed in Loper

Bright/Relentless—to independently interpret the

law. As this Court explained, the APA simply

“codifies for agency cases the unremarkable, yet

elemental proposition reflected by judicial practice

dating back to Marbury: that courts decide legal

questions by applying their own judgment.” Id. at

391–92. The APA did not create that duty. Rather, it

confirmed a “traditional conception of the judicial

function” that long predated the statute. Id. at 393;

see also Kisor, 588 U.S. at 582 (same). That principle

applies with special force in criminal sentencing

where the stakes are not limited to regulatory

burdens or economic consequences but include the

loss of liberty itself.

Rejecting the dissent’s suggestion that courts

should defer to agencies because “judges are not

experts in the field,” Chief Justice Roberts, writing for

the majority, clarified the error in that premise: “That

depends, of course, on what the ‘field’ is. If it is legal

interpretation, that has been, ‘emphatically,’ ‘the

province and duty of the judicial department’ for at

least 221 years.” 603 U.S. at 412 (quoting Marbury, 5

U.S. at 177). Roberts emphasized that “[j]udges have

always been expected to apply their ‘judgment’

independent of the political branches when

interpreting the laws those branches enact.” Id. As

Justice Gorsuch emphasized in his concurrence,

9

“agencies cannot invoke a judge-made fiction

[Chevron deference] to unsettle our Nation’s promise

to individuals that they are entitled to make their

arguments about the law’s demands on them in a fair

hearing, one in which they stand on equal footing with

the government before an independent judge.” Id. at

441 (Gorsuch, J., concurring).

Taken together, Kisor and Loper Bright/

Relentless do not merely trim the edges of Auer

deference—they expose it as doctrinally unsound and

constitutionally indefensible. And Stinson deference

only magnifies Auer’s grave infirmities, extending

them to criminal sentencing where deference to the

Sentencing Commission’s interpretation of its own

Guidelines can mean more years of an individual’s life

spent behind bars. Fortunately, Kisor and Loper

Bright/Relentless make clear that deference requiring

Article III courts to abdicate their constitutional duty

to decide all questions of law cannot stand. As a

result, Stinson deference has been reduced to little

more than a “doctrinal dinosaur,” which belongs not

in our courts, but in the fossil record of overruled

precedent. See Kisor, 588 U.S. at 588; id. at 592 (postKisor, Auer deference is “maimed and enfeebled—in

truth, zombified”) (Gorsuch, J., concurring).

A. Kisor Pushed Auer Deference to the

Brink of Extinction

In Stinson, this Court extended Seminole Rock

deference to the Sentencing Commission’s commentary

to the Sentencing Guidelines, requiring courts to treat

the Commission’s interpretations as controlling—unless

10

“plainly erroneous or inconsistent” with the Guidelines.

508 U.S. at 45 (quoting Seminole Rock, 325 U.S. at 414).

The Stinson court further held that courts must give the

Commission’s commentary binding effect even in cases

where the underlying text of a Guideline is clear. See id.

at 44 (Unlike “an agency’s legislative rule,” which “must

yield to the clear meaning of a statute,” the Sentencing

Commission’s commentary need not yield even to

“unambiguous guidelines”). In six circuits, including the

Fifth Circuit, courts continue to reflexively defer to any

Commission commentary purporting to “interpret” a

Guideline. See, e.g., United States v. Martin, 119 F.4th

410, 414 (5th Cir. 2024) (citing United States v. Vargas,

74 F.4th 673, 683 (5th Cir. 2023) (en banc)), cert. denied,

145 S. Ct. 1454 (2025). That is so even where the

Commission’s “interpretation” would effectively define

and/or expand the provision, resulting in a harsher

sentence (as was the case for Mr. Beaird), so long as its

interpretation is not “plainly erroneous or inconsistent”

with the text. Stinson, 508 U.S. at 45; see also Vargas, 74

F.4th at 684 (requiring strict application of Stinson

deference unless there is “flat inconsistency” or

“irreconcilable variance” between commentary and

Guideline).

That approach to ambiguity is irreconcilable with

Kisor, let alone Loper Bright. Although a plurality

opinion, every Justice agreed that it was necessary to

“reinforce” and “further develop” the limitations on the

deference that courts purportedly owe to an agency’s

interpretation of its own rules. Kisor, 588 U.S. at 563,

574-75; id. at 591 (Roberts, C.J., concurring); id. at 631

(Gorsuch, J., concurring in judgment); id. at 631-32

(Kavanaugh, J., concurring in judgment). Writing for

11

the plurality, Justice Kagan candidly acknowledged

that the Court had in the past applied Auer deference

“without significant analysis of the underlying

regulation,” characterizing the Court’s former

approach as a “reflexive” “caricature” of the doctrine.

Id. at 574. That reflexive caricature is precisely how

half the circuits still apply Stinson deference today—

on the theory that Kisor had no bearing on Stinson.

That theory is wrong. The same judicial duty

of independent interpretation that Kisor held

incompatible with reflexive Auer deference is equally

incompatible with reflexive Stinson deference. Kisor

made three critical changes that cannot be squared

with any doctrine requiring courts to defer reflexively

to an agency’s interpretation of its own rules. First,

courts must exhaust “all the ‘traditional tools’” of

construction before concluding that a rule is

“genuinely ambiguous.” Id. at 575. As the plurality

opinion emphasized, courts “cannot wave the

ambiguity flag just because [they] found [a rule]

impenetrable on first read.” Id. Rather, courts must

carefully consider the text, structure, history and

purpose as “if [they] had no agency to fall back on.”

Id. If the rule is not genuinely ambiguous, “then a

court has no business deferring to any other reading,

no matter how much the agency insists it would make

more sense.” Id. Deference under such circumstances

would “permit the agency, under the guise of

interpreting a regulation, to create de facto a new

regulation.” Id. (citation omitted). Second, even “[i]f

genuine

ambiguity

remains,”

any

agency

interpretation “must still be ‘reasonable.’” Id. And

third, even an agency’s reasonable reading of a

12

genuinely ambiguous rule does not automatically

control: courts must still independently examine

whether the “character and context” of the agency’s

interpretation entitles it to deference. Id. at 576.

Kisor’s constraints apply equally to Stinson,

which, like Auer, requires courts to defer to an agency’s

interpretation of its own rules—but, unlike Auer, in the

criminal context where deference can dictate the number

of years an individual spends behind bars. As the

Eleventh Circuit explained in United States v. Dupree,

“the only way to harmonize [Stinson and Kisor] is to

conclude that Kisor’s gloss on Auer and Seminole Rock

applies to Stinson.” 57 F.4th 1269, 1275 (11th Cir. 2023)

(en banc). In Kisor, the plurality opinion sharply

criticized the “most classic formulation of [Auer

deference]”—which requires courts to defer to an

agency’s interpretation of its own rule unless the

“agency’s construction is ‘plainly erroneous or

inconsistent with the regulation’”—dismissing that

formulation as a “reflexive” “caricature of the doctrine.”

Kisor, 588 U.S. at 574 (citation omitted). The true

formulation of the doctrine, Kisor clarified, prohibits

deference to an agency’s interpretation “unless the

regulation is genuinely ambiguous.” Id. “If uncertainty

does not exist, there is no plausible reason for deference.

The regulation then just means what it means—and the

court must give it effect, as the court would any law.” Id.

at 574-75. But see Martin, 119 F.4th at 414 (quoting

Vargas, 74 F.4th at 684) (describing Fifth Circuit’s

deference to commentary so long as there is no “flat

inconsistency” with Guidelines).

13

Kisor’s reasoning leaves no room for reflexive

deference to agency commentary. After all, the reflexive

“caricature” of deference that Kisor rejected outright is

the very formulation that Stinson adopted, practically

word for word. See 508 U.S. at 45. Stinson reasoned that

the Sentencing Commission’s Guidelines “are the

equivalent of legislative rules adopted by federal

agencies,” and thus that the commentary interpreting

those Guidelines warrants the same controlling weight

as an agency’s interpretation of its own regulation. Id.

But that is precisely the formulation of deference that

Kisor dismantled. So, if commentary is to be treated with

the same deference now accorded administrative agency

interpretations, then it necessarily follows that Kisor’s

limits apply in full measure: no deference unless genuine

ambiguity remains after rigorous judicial analysis, and

never where commentary expands the plain text beyond

what the Guideline itself clearly provides.

In its ruling below, the lower court nonetheless

refused to apply Kisor to Stinson. United States v.

Beaird, No. 24-10764, 2025 WL 1410410, at *1 (5th Cir.

May 15, 2025), cert. granted in part, No. 25-5343, 2026

WL 1052007 (Apr. 20, 2026). That refusal rests on the

Fifth Circuit’s contention that Stinson remains

controlling because this Court has yet to address whether

lower courts must approach interpretation of the

Guidelines and their commentary the same way that

they approach the interpretation of agency regulations.

See Vargas, 74 F.4th at 680-83, cert. denied, 144 S. Ct.

828 (2024). Not so. In Stinson itself, this Court spoke

“directly to the issue of whether the Guidelines and its

commentary, on the one hand, and an agency’s rules and

its interpretation of those rules, on the other hand,

14

should be treated differently and concluded they should

be treated the same.” Dupree, 57 F.4th at 1276-77 (“Our

conclusion today flows not from the Supreme Court’s

silence, but from its affirmation that the commentary

should be treated the same as the agencies’

interpretations that were at issue in Seminole Rock, and

now Auer and Kisor.”). There is no principled or

constitutionally grounded reason for courts to afford

reflexive, controlling weight to the Sentencing

Commission’s interpretations of its own Guidelines. To

hold otherwise would invert separation-of-powers

principles by granting an independent agency greater

authority to bind courts in criminal cases than the

Constitution allows the Executive to wield in civil or

regulatory matters, all while depriving defendants of the

due-process guarantee of clear notice before being

stripped of their liberty.

Nor can Stinson be reconciled with the

constitutional underpinnings of Mistretta v. United

States, 488 U.S. 361 (1989).

The Commission’s

“unusual … structure and authority,” id. at 412, render

deference less appropriate—not more so. Mistretta

upheld the Guidelines regime only because (1) the

Commission promulgates Guidelines through noticeand-comment rulemaking, and (2) Congress reviews

them before they take effect. Id. at 393-94. Guidelines

commentary, however, enjoys neither safeguard.

Accordingly, the Commission may issue its

interpretations of the Guidelines unilaterally, without

congressional review or APA process. Thus, to require

courts to treat the commentary as binding plainly

“circumvent[s] … the checks Congress put on the

Sentencing Commission.” United States v. Campbell, 22

15

F.4th 438, 446 (4th Cir. 2022) (citation omitted). And the

concerns that Kisor identified “are even more acute in the

context of the Sentencing Guidelines, where individual

liberty is at stake.” Id.

Deference to the Commission’s commentary “both

transfer[s] the judiciary’s power to say what the law is to

the Commission and deprive[s] the judiciary of its ability

to check the Commission’s exercise of power.” United

States v. Havis, 907 F.3d 439, 450-51 (6th Cir. 2018)

(Thapar, J., concurring). Stinson also allows the

Commission to make and interpret the Guidelines. But

“just as a pitcher cannot call his own balls and strikes, an

agency cannot trespass upon the court’s province to ‘say

what the law is.’” Id. at 450 (quoting Marbury, 5 U.S. at

177).

“Such deference is found nowhere in the

Constitution—the document to which judges take an

oath.” Id. at 451-52.

Put simply, Stinson embraced the very deference

formulation that Kisor has since repudiated. Mechanical

adherence to Stinson not only contradicts Kisor, but it

also abdicates the judiciary’s constitutional role in

criminal sentencing and deprives defendants of due

process of law. See infra at Section II.B. Article III

judges may not cede their duty to “say what the law is”

to agency commentary that expands criminal

punishment. Marbury, 5 U.S. at 177. As this Court has

emphasized, “criminal laws are for courts, not for the

Government, to construe.” Abramski v. United States,

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

16

B. Loper Bright/Relentless’s Reasoning

Compels the Overruling of Stinson

Going further than Kisor v. Wilkie, in Loper

Bright/Relentless, this Court unequivocally overruled

Chevron deference, decisively repudiating the notion

that judges must—or even may—substitute deference

to an agency’s view for their own independent

judgment in interpreting statutes. See 603 U.S. at

412-13. While Stinson deference does not arise under

the APA as Chevron deference did, the absence of an

APA-based cause of action does not license courts to

abandon their core duty—rooted in Article III and

reaffirmed in Loper Bright/Relentless—to interpret

the law independently. As Loper Bright/Relentless

makes clear, reflexive deference imperils the

separation of powers and compromises the judicial

independence that Article III requires—risks that are

especially grave in the criminal context where

individual liberty is at stake.

This Court held that Chevron is irreconcilable

with the APA’s mandate that a reviewing court must

“decide all relevant questions of law, interpret

constitutional and statutory provisions, and

determine the meaning or applicability of the terms of

an agency action.”

5 U.S.C. § 706; Loper

Bright/Relentless, 603 U.S. at 391-94. And as Justice

Thomas observed in his concurring opinion: “Because

the judicial power requires judges to exercise their

independent judgment, the deference that Chevron

requires contravenes Article III’s mandate.” Loper

Bright/Relentless, 603 U.S. at 415 (Thomas, J.,

concurring). Nor can such deference “‘be salvaged’ by

17

recasting it as deference to an agency’s ‘formulation of

policy,’” Justice Thomas explained. Id. (citation

omitted). For “[i]f that were true, [it] would mean that

‘agencies

are

unconstitutionally

exercising

“legislative Powers” vested in Congress,’” because

“giv[ing] the force of law to agency pronouncements on

matters of private conduct as to which Congress”

never spoke “permit[s] a body other than Congress to

perform a function that requires an exercise of

legislative power.” Id.

Those same constitutional infirmities are

present—indeed, magnified—in the criminal context

of Stinson deference. If Chevron could not survive in

the regulatory sphere, deference in criminal

sentencing—where the consequences are measured in

years of imprisonment—cannot possibly be justified.

Stinson deference vests both the making and the

interpretation of law in the Commission’s hands and

permits the agency to expand and rewrite its own

Guidelines through “interpretive” commentary,

rather than through the formal rulemaking process

and congressional review that the APA requires. 3 See

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 112 (2015)

(Scalia, J., concurring in the judgment) (“[T]here are

weighty reasons to deny a lawgiver the power to write

3 Although the Sentencing Commission’s Guidelines, themselves,

are subject to the APA’s notice-and-comment requirements, the

commentary to the Guidelines is not subject to any notice-andcomment requirements, nor “any other mandated safeguards to

cabin the Sentencing Commission’s broad authority.” United

States v. Castillo, 69 F.4th 648, 663 (9th Cir. 2023).

18

ambiguous laws and then be the judge of what the

ambiguity means.”).

Justice Gorsuch’s concurring opinion in Loper

Bright/Relentless underscores the constitutional

defects in Chevron deference that pervade Stinson

deference to an even greater degree. He warned that

deference doctrines like Chevron “guarantee[]

‘systematic bias’” by “requir[ing] courts to ‘place a

finger on the scales of justice in favor of the most

powerful of litigants, the federal government.’” 603

U.S. at 433 (Gorsuch, J., concurring). Rather than

impartially resolving questions of law, courts instead

must “resort to a far cruder heuristic: ‘The reasonable

bureaucrat always wins.’” Id. at 434. Deference in

the criminal sphere is doubly perverse: the rule of

lenity requires that ambiguities in penal laws be

resolved in favor of the defendant, yet Stinson

deference inverts that rule, compelling courts to

resolve doubts in favor of harsher readings of the law

advanced by the government. Id. (“The ancient rule

of lenity is still another of Chevron’s victims.”).

These concerns strike with particular force in

the Sentencing Guidelines context. Treating the

Commission’s commentary as binding does more than

call for deference to expertise—it “replac[es] the

doctrine of lenity with a doctrine of severity.”

Whitman, 574 U.S. at 1005 (Scalia, J., respecting the

denial of certiorari) (citation omitted).

Stinson

deference ensures that the government’s harsher

construction of the Sentencing Guidelines will prevail

so long as it is not “plainly erroneous or inconsistent

with” the Guidelines, while a defendant’s equally—or

19

even more—plausible reading will be categorically

rejected. That inversion of lenity not only strips

defendants of the constitutional presumption of

liberty, but it also transforms Article III judges from

neutral guardians of the law into instruments of the

federal prosecution.

In short, Stinson deference not only embodies,

but amplifies the glaring constitutional defects of

Chevron deference that Loper Bright/Relentless

identified and condemned. It strips judges of their

constitutional role as independent interpreters of the

law, places a prosecutorial thumb on the scales, and

flips the rule of lenity on its head. See infra Part II.

A doctrine that systemically biases criminal

adjudication in favor of the government cannot be

squared with Article III, due process of law, or this

Court’s repeated admonition that individual liberty

may be curtailed only by clear law duly enacted by

Congress—not by agency commentary. Stinson is not

merely the obsolete refuse of a bygone era; it is gravely

unconstitutional. This Court should lay it to rest.

II.

INCREASING CRIMINAL SENTENCES BASED ON

DEFERENCE IS UNCONSTITUTIONAL

The rule of lenity, principles of due process, and

the independence of the judicial office all require

courts to interpret the Guidelines for themselves,

without deference to the Commission’s commentary.

As the Stinson court itself acknowledged, courts may

not afford deference to Guidelines commentary if it

would “run afoul of the Constitution.” Stinson, 508

U.S. at 47.

20

The circuit courts are openly divided on

whether, and to what degree, Kisor constrains

Stinson, and how rigorously judges must analyze the

Guidelines’ text before deferring to commentary.

Such a disparity in how judges interpret text would be

unacceptable for any rules that require national

uniformity, but it is singularly inexcusable in the case

of criminal sentencing, where liberty is at stake. How

much liberty a defendant loses should not depend on

the accident of which federal circuit’s law governs his

sentencing.

A. Stinson’s Particular Outcome Did Not

Implicate the Rule of Lenity

In contrast to Stinson itself, wherein the

commentary at issue happened to favor a more lenient

sentence, 508 U.S. at 47-48, deference to the

Commission in this case required the court to impose

a stricter sentence on Mr. Beaird, so “alarm bells

should be going off.” Havis, 907 F.3d at 450 (Thapar,

J., concurring). “[W]hen liberty is at stake,” deference

“has no role to play.” Guedes v. ATF, 140 S. Ct. 789,

790 (2020) (Gorsuch, J., respecting the denial of

certiorari). As six Third Circuit judges recognized,

“[p]enal laws pose the most severe threats to life and

liberty, as the Government seeks to brand people as

criminals and lock them away.” Nasir, 17 F.4th at 473

(Bibas, J., concurring). The Court in Stinson had no

occasion to consider what role lenity would play in its

deference regime, so it did not grapple with the

constitutional issues inherent when Stinson deference

21

applies to increase a criminal penalty—nor has any

subsequent Supreme Court ruling. 4

The rule of lenity dictates that any “ambiguity

concerning the ambit of criminal statutes should be

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

561 U.S. 358, 410 (2010) (quoting Cleveland v. United

States, 531 U.S. 12, 25 (2000)). This is not a novel

concept. Rather, the rule of lenity is one of the original

tools of statutory construction. See United States v.

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

4 In dictum, the Supreme Court once stated that, although it had

applied lenity to “specific factual dispute[s]” regarding “a statute

that contains criminal sanctions,” the Court had “never

suggested that the rule of lenity should provide the standard for

reviewing facial challenges to administrative regulations

whenever the governing statute authorizes criminal

enforcement.” Babbitt v. Sweet Home Chapter of Cmtys. for a

Great Or., 515 U.S. 687, 704 n.18 (1995). Justice Scalia, joined

by Justice Thomas, later described Babbitt’s footnote as a “driveby ruling” that “deserves little weight” because it “contradicts the

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

criminal and civil applications, the rule of lenity governs its

interpretation in both settings.” Whitman v. United States, 574

U.S. 1003, 1005 (2014) (Scalia, J., respecting the denial of

certiorari) (citing Leocal v. Ashcroft, 543 U.S. 1, 11-12 n.8 (2004);

United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 518 n.10

(1992) (plurality opinion)). At least twice since Babbitt, the

Court has treated the tension between agency deference and

lenity as an open question. See Esquivel-Quintana v. Sessions,

581 U.S. 385, 397-98 (2017) (declining to “resolve whether the

rule of lenity or Chevron receives priority” because the statute at

issue was unambiguous); Solid Waste Agency of N. Cook Cnty. v.

U.S. Army Corps of Eng’rs, 531 U.S. 159, 174 & n.8 (2001)

(declining to consider the rule of lenity’s application to the Clean

Water Act because the regulation at issue exceeded the agency’s

statutory authority).

22

fifteenth century jurist William Paston abided by the

maxim that “a penalty should not be increased by

interpretation.” A Discourse upon the Exposicion &

Understandinge of Statutes, at 154-55 (Samuel E.

Thorne ed. 1942).

Lenity “applies not only to interpretations of

the substantive ambit of criminal prohibitions, but

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

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

arose to mitigate draconian sentences.” Nasir, 17

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

Hall, Strict or Liberal Construction of Penal Statutes,

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

Lenity applies with equal force to the

Guidelines. See United States v. Chandler, 104 F.4th

445, 464 (3d Cir. 2024) (Bibas, J., dissenting) (“[T]here is

no compelling reason to defer to a Guidelines comment

that is harsher than the text.”). Indeed, “it is crucial

that judges give careful consideration to every minute

that is added to a defendant’s sentence.” United

States v. Faison, No. 8:19-cr-00027, 2020 WL 815699,

at *1 (D. Md. Feb. 18, 2020) (emphasis added). For a

defendant, “every day, month and year that was

added to the ultimate sentence will matter. … [T]he

difference between probation and fifteen days may

determine whether the defendant is able to maintain

his employment and support his family.” Id.; see also

Abramski, 573 U.S. at 191 (“[W]e have never held that

the Government’s reading of a criminal statute is

entitled to any deference.”). If the Government’s gloss

on a criminal statute receives no deference, neither

should its interpretation of a corresponding sentence.

23

Three “core values of the Republic” compel the

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

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

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

J., concurring). Due process of law requires that “a

fair warning should be given to the world in language

that the common world will understand, of what the

law intends to do if a certain line is passed.” McBoyle

v. United States, 283 U.S. 25, 27 (1931). By construing

ambiguities in the defendant’s favor, lenity precludes

criminal punishment when Congress did not provide

a fair warning through clear statutory language.

Lenity also preserves the separation of powers:

the legislature criminalizes conduct and sets

statutory penalties, the executive decides which

criminal charges to prosecute and can recommend a

sentence, and the judiciary imposes sentences within

the applicable statutory framework. United States v.

Bass, 404 U.S. 336, 348 (1971). This separation also

ensures that all three branches must concur before

taking away someone’s liberty. In this way, lenity

“strikes the appropriate balance between the

legislature, the prosecutor, and the court in defining

criminal liability.” Liparota v. United States, 471 U.S.

419, 427 (1985) (citing Bass, 404 U.S. at 348).

Finally, and “perhaps most importantly,”

“lenity expresses our instinctive distaste against men

languishing in prison unless the lawmaker has clearly

said they should.” Nasir, 17 F.4th at 473 (Bibas, J.,

concurring) (citation omitted). Indeed, by promoting

liberty, the rule of lenity “fits with one of the core

24

purposes of our Constitution, to ‘secure the Blessings

of Liberty’ for all[.]” Id. (quoting U.S. Const. pmbl.).

Stinson deference rests on no comparable

constitutional foundation. Havis, 907 F.3d at 451

(Thapar, J., concurring) (“Such deference is found

nowhere in the Constitution—the document to which

judges take an oath.”). Agency deference is instead

“rooted in a presumption about congressional intent,”

and even then, that presumption is “always

rebuttable.” Kisor, 588 U.S. at 569-70. And whatever

force that presumption may have in ordinary civil

regulatory

cases,

it

cannot

overcome

the

constitutional values served by lenity in criminal

sentencing.

When an interpretation increases

criminal punishment, the relevant presumption runs

the other way: penal laws must be construed strictly,

and ambiguity must be resolved in favor of the

defendant. See Wiltberger, 18 U.S. (5 Wheat.) at 95;

Bass, 404 U.S. at 348. To prioritize Stinson deference

over lenity would turn due process of law on its head,

allowing criminal punishment to turn not on clear law

enacted by Congress and independently interpreted

by courts, but on an agency’s preferred construction of

ambiguity of its own making. Where liberty is at

stake and the law remains ambiguous after all

interpretive tools have been exhausted, lenity—not

deference—must control.

However, when courts are precluded from

exercising their judicial power “to say what the law

is,” they are forced to “abandon the best reading of the

law in favor of views of those presently holding the

reins” of government, rendering the rule of lenity yet

25

another victim of unconstitutional agency deference.

Loper Bright/Relentless, 603 U.S. at 433 (Gorsuch, J.,

concurring). Rather than resolving ambiguities in the

law in favor of liberty, Stinson deference channels

uncertainty into harsher punishment, resulting in

criminal sentences that are lengthened not by the

clear voice of Congress, but by agency commentary.

B. Deference to the Commentary to

Unambiguous Guidelines Violates

Judicial Independence and Due Process

1. Deference Undermines Article III

Judicial Independence

Judicial independence has been a touchstone of

legitimate governance at least since English judges

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

being the author of the Lawe is the interpreter of the

Lawe.” See Philip Hamburger, Law and Judicial

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

although they exercised the judicial power in the

name of the monarch, the power rested solely with

them. Prohibition del Roy (1608) 77 Eng. Rep. 1342,

1343; 12 Co. Rep. 64, 65.

During the uprising against tyranny, the

American Declaration of Independence objected to

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

The Declaration of Independence para. 11 (U.S. 1776).

The Founders then cast their first substantive vote at

the Constitutional Convention of 1787 to create a

government that separated power among three coequal branches.

See 1 Records of the Federal

26

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

Univ. Press 1911). The separation of governmental

powers preserves liberty, in part, because each branch

jealously checks the other branches’ attempts to shift

the constitutional balance of power.

No branch is more vital to protecting liberty

than the judiciary. An independent judiciary serves

as our constitutional backstop and ensures that the

political branches cannot diminish constitutional

protections. Article III adopted the common-law

tradition of an independent judicial office, secured by

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

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

an oath to the Constitution and is duty-bound to

exercise his office independently. See Hamburger,

Law and Judicial Duty, supra, at 507-12.

Judicial office includes a duty of independent

judgment. See James Iredell, To the Public, N.C.

Gazette (Aug. 17, 1786). Through the independent

judicial office, the Founders ensured that judges

would not administer justice based on someone else’s

interpretation of the law. See 2 Records of the Federal

Convention of 1787 79 (Max Farrand ed., Yale Univ.

Press 1911); The Federalist No. 78, at 525 (Alexander

Hamilton) (Jacob E. Cooke ed., 1961) (“The

interpretation of the laws is the proper and peculiar

province of the courts.”).

This obligation of independence is reflected in

the opinions of the founding era’s finest jurists. See,

e.g., State of Georgia v. Brailsford, 2 U.S. (2 Dall.) 415,

416 (1793) (Iredell, J., dissenting) (“It is my

27

misfortune to dissent … but I am bound to decide,

according to the dictates of my own judgment.”); The

Julia, 14 F. Cas. 27, 33 (C.C.D. Mass. 1813) (No.

7,575) (Story, J.) (“[M]y duty requires that whatsoever

may be its imperfections, my own judgment should be

pronounced to the parties.”); United States v. Burr, 25

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

C.J.) (“[W]hether [the point] be conceded by others or

not, it is the dictate of my own judgment, and in the

performance of my duty I can know no other guide.”).

Judicial independence, as a duty and an

obligation, persists today.

This principle is so

axiomatic, in fact, that it seldom appears in legal

argument; the mere suggestion that a judge might

breach his or her duty of independent judgment is a

scandalous insinuation. But that is exactly what

deference regimes like Stinson require: judicial

dependence on a non-judicial entity’s interpretation of

the law. That is also exactly what Loper Bright/

Relentless unequivocally repudiated two years ago.

Just as Chevron deference required that “courts

mechanically afford binding deference to agency

interpretations,” Loper Bright/Relentless, 603 U.S. at

399, so too faithful application of Stinson deference

requires judges to abdicate the duty of their office by

forgoing their independent judgment in favor of the

Sentencing Commission’s legal interpretation of its

own rules—which play a substantial role in

determining a criminal defendant’s sentence. See

Gall v. United States, 552 U.S. 38, 50 n.6 (2007). Such

deference diminishes the judicial office and, with it, a

key structural safeguard that the Framers erected as

28

a bulwark against tyranny. This is especially true

when “a sentence enhancement potentially translates

to additional years or decades in federal prison,” as

“we cannot forget that ‘[t]he structural principles

secured by the separation of powers protect the

individual as well.’” Campbell, 22 F.4th at 446-47

(quoting Bond v. United States, 564 U.S. 211, 222

(2011)). “In such circumstances, ‘a court has no

business deferring to any other reading, no matter

how much the [Government] insists it would make

more sense.’” Id. (quoting Kisor, 588 U.S. at 574-576).

Even when Congress has tasked an agency

with promulgating binding rules or guidelines, it

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

any case or controversy about the meaning and

application of those agency-made provisions.

Marbury, 5 U.S. at 177. The duty of independent

judgment is the very office of an Article III judge;

Stinson cannot lawfully require judges to abdicate

that duty. The Commission’s commentary on how to

best interpret its Guidelines deserves no more weight

than the persuasiveness of its opinion. 5

5 While three of the seven Commissioners must be active federal

judges, they do not serve as judges, but as part-time

Commissioners when serving on the Sentencing Commission.

See 28 U.S.C. § 991. In any event, mandating deference to the

Commission—the majority of whom are not federal judges—

creates a structure where only certain judges’ interpretations are

authoritative with respect to the Sentencing Guidelines, and

only in a context wholly separate from the normal judicial order.

29

2. Stinson Deference Violates Due Process

of Law by Institutionalizing Bias

Reflexive

deference

to

Commission

commentary also jeopardizes judicial impartiality.

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

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

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

Masterpiece Cake Shop, Ltd. v. Colo. C.R. Comm’n,

584 U.S. 617, 643 (2018) (Kagan, J., concurring) (the

Constitution

forbids

proceedings

“infected

by … bias”). By ensuring a neutral arbiter, due

process “helps to guarantee that life, liberty, or

property will not be taken on the basis of an erroneous

or distorted conception of the facts or the law.”

Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980).

Moreover, due process of law requires more than

procedural fairness.

The government must act

“through judges whose office require[s] them to

exercise independent judgment in accord with the

law.” Philip Hamburger, Is Administrative Law

Unlawful? 173 (2014). Through the Due Process

Clause, the Constitution incorporates the commonlaw maxim that “[n]o man is allowed to be a judge in

his own cause, because his interest would certainly

bias his judgment, and, not improbably, corrupt his

integrity.” The Federalist No. 10 (James Madison)

(Cooke ed. 1961).

Judicial bias need not exist at a personal level

to violate due process of law—it can be institutional.

In fact, institutionalized judicial bias is more

pervasive, as it systematically infects the fairness of

the legal system, not just an individual party before a

30

particular judge. Stinson deference institutionalizes

bias by requiring courts to “defer” to the government’s

interpretation in violation of a defendant’s right to

due process of law. Cf. Philip Hamburger, Chevron

Bias, 84 GEO. WASH. L. REV. 1187 (2016). Rather than

exercise their own judgment about what the law is,

judges under Stinson defer as a matter of course to the

judgment of one of the litigants before them: the

federal government. The government litigant wins

merely by showing that its preferred interpretation of

the commentary is not “plainly erroneous or

inconsistent with” the Guidelines. Stinson, 508 U.S.

at 45. A judge cannot simply find the defendant’s

reading more plausible or think the government’s

reading is wrong—the government must be plainly

wrong. This rubric tips the scales for the government.

Most judges recognize that personal bias

requires recusal. It is equally inappropriate for a

judge to decide a case based on a deference regime

that institutionalizes bias by requiring judges to favor

the legal position of one of the litigating parties: again,

the federal government. Doctrines that call for

government-litigant bias, such as Stinson deference,

patently deny due process of law to criminal

defendants by favoring the government prosecutor’s

position. Tumey v. Ohio, 273 U.S. 510, 532 (1927).

This Court should reconsider Stinson, reject the

deference doctrine that compromises the judiciary

while depriving countless criminal defendants of their

constitutional rights, and thereby allow conscientious

judges to uphold their constitutional oaths. Deference

has no proper role in criminal sentencing, where the

31

government may deprive a defendant of liberty only if

all

three

branches

agree—separately

and

independently—that the sanction is justified.

CONCLUSION

For the foregoing reasons, we respectfully urge

this Court to repudiate Stinson deference and

reiterate the principle that criminal sentencing must

rest on courts’ independent interpretation of the

Guidelines—not on reflexive deference to agency

commentary.

Respectfully submitted,

/s/ Casey B. Norman

Casey B. Norman

Counsel of Record

Kara M. Rollins

Faith A. Scrivo

Mark S. Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

4250 N. Fairfax Drive, Suite 300

Arlington, VA 22203

(202) 869-5210

Casey.Norman@NCLA.legal

Counsel for Amicus Curiae