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 United States

Court of A ppeals for the Fifth Circuit

BRIEF OF AMICUS CURIAE FAMM

IN SUPPORT OF NEITHER PARTY

George Carpenter

Hecker Fink LLP

350 Fifth Avenue,

63rd Floor

New York, NY 10118

Joshua Matz

Counsel of Record

Trisha A nderson

Taisa M. Goodnature

Hecker Fink LLP

1050 K Street NW,

10th Floor

Washington, DC 20001

(212) 763-0883

jmatz@heckerfink.com

Counsel for Amicus Curiae

394371

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

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

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

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

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

I.

T he C ou r t S hou ld R e c o g n i z e a nd

Reaff i r m the Unique Nature of the

Sentencing Commission . . . . . . . . . . . . . . . . . . . . 6

II. The Court Should Recognize the Role of

Lenity in Interpreting the Guidelines and

Commentary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

A. The Principles Underlying the Rule

of Lenity A re Applicable to the

Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

B. Lenity P r inciples Should Apply

Rega rdless of the Standa rd for

Deference to Commentary . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

ii

TABLE OF AUTHORITIES

Page

Cases

Beckles v. United States,

580 U.S. 256 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Bifulco v. United States,

447 U.S. 381 (1980) . . . . . . . . . . . . . . . . . . . . . . . . 14, 16

Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410 (1945) . . . . . . . . . . . . . . . . . . . . . 2, 4, 8, 13

Harrison v. Vose,

50 U.S. (9 How.) 372 (1850) . . . . . . . . . . . . . . . . . . . . . 14

Kimbrough v. United States,

552 U.S. 85 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Kisor v. Wilkie,

588 U.S. 558 (2019) . . . . . . . . . 2, 3, 4, 6, 8, 9, 11, 13, 19

Liparota v. United States,

471 U.S. 419 (1985) . . . . . . . . . . . . . . . . . . . . . . 5, 16, 17

Mistretta v. United States,

488 U.S. 361 (1989) . . . . . . . . . . . . . . . . . . . . . 7, 8, 9, 12

Moskal v. United States,

498 U.S. 103 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Peugh v. United States,

569 U.S. 530 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

iii

Authorities

Page

Seila Law LLC v. Consumer Fin. Prot. Bureau,

591 U.S. 197 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Stinson v. United States,

508 U.S. 36 (1993) . . . . . 2, 3, 4, 6, 7, 8, 9, 12, 13, 14, 19

United States v. Abreu,

32 F.4th 271 (3d Cir. 2022) . . . . . . . . . . . . . . . . . . . . . 18

United States v. Booker,

543 U.S. 220 (2005) . . . . . . . . . . . . . . . . . 5, 8, 11, 15, 17

United States v. Canelas-Amador,

837 F.3d 668 (6th Cir. 2016) . . . . . . . . . . . . . . . . . . . . 15

United States v. Castillo,

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

United States v. Chandler,

104 F.4th 445 (3d Cir. 2024) . . . . . . . . . . . . . . . . . 19, 20

United States v. Davis,

588 U.S. 445 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Dupree,

57 F.4th 1269 (11th Cir. 2023) . . . . 2, 4, 7, 9, 11, 12, 13

United States v. LaBonte,

520 U.S. 751 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

iv

Authorities

Page

United States v. Maloid,

71 F.4th 795 (10th Cir. 2023) . . . . . . . . . . 4, 8, 9, 10, 11

United States v. Mitchell,

120 F.4th 1233 (4th Cir. 2024) . . . . . . . . . . . . . . . . 4, 15

United States v. Moses,

23 F.4th 347 (4th Cir. 2022) . . . . . . . . . . . . . . . 8, 10, 11

United States v. Nasir,

17 F.4th 459 (3d Cir. 2021) (en banc) . . . 4, 5, 16, 17, 18

United States v. Rivera,

76 F.4th 1085 (8th Cir. 2023) . . . . . . . . . . . . . . . . . . . 10

United States v. Smith,

977 F.3d 431 (5th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 15

United States v. Tony,

121 F.4th 56 (10th Cir. 2024) . . . . . . . . . . . . . . . . . . . 20

United States v. Vargas,

74 F.4th 673 (5th Cir. 2023) (en banc) . . . . . . . . . 4, 7, 9

United States v. Wiltberger,

18 U.S. (5 Wheat.) 76 (1820) . . . . . . . . . . . . . . . . . 16, 17

United States v. Wright,

607 F.3d 708 (11th Cir. 2010) . . . . . . . . . . . . . . . . . . . 15

v

Authorities

Page

Statutes

18 U.S.C. § 3553(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

28 U.S.C. § 991(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12

28 U.S.C. § 994(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

28 U.S.C. § 994(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

28 U.S.C. § 994(p) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

28 U.S.C. § 994(x) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Other Authorities

John S. Acton, Note, The Future of Judicial

Deference to the Commentary of the United

States Sentencing Guidelines, 45 Harv. J. L. &

Pub. Pol’y 349 (2022) . . . . . . . . . . . . . . . . . . . . . . . . 9–10

Henry J. Friendly, Mr. Justice Frankfurter and the

Reading of Statutes, in Benchmarks (1967) . . . . . . . 17

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) . . . . . . .16

U.S. Sent’g Comm’n, 2019 Annual Report and

Sourcebook of Federal Sentencing Statistics . . . . . 17

U.S. Sent’g Guidelines Manual § 2K2.1 (U.S. Sent’g

Comm’n 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1

INTEREST OF AMICUS CURIAE

FA MM is a nationa l, nonprof it , nonpa r tisan

organization whose primary mission is to promote

fair and rational sentencing policies, and to challenge

mandatory sentencing laws and their ensuing inflexible

and excessive penalties. Founded in 1991 as Families

Against Mandatory Minimums, FAMM currently has

75,000 members nationwide. It pursues a broad mission

of creating a more fair and effective justice system that

respects American values of individual accountability and

dignity while keeping communities safe. By mobilizing

incarcerated persons and their families adversely affected

by unjust sentences, FAMM illuminates the human face of

sentencing as it advocates for state and federal sentencing

reform. FAMM advances its charitable purposes in part

through education of the general public and through

selected amicus filings in important cases.1

SUMMARY OF ARGUMENT

In addressing the question presented by this case, the

Court should reaffirm the unique characteristics of the

United States Sentencing Commission, which differentiate

it from Executive Branch administrative agencies. The

Court should also dispel confusion among other federal

judges by confirming that the rule of lenity properly

applies when they interpret the Guidelines and associated

commentary.

1. Pursuant to Rule 37.6, FAMM states that no counsel for a

party authored this brief in whole or in part, and that no person

or entity other than FAMM, its members, or its counsel made a

monetary contribution to fund its preparation and submission.

2

I. Over three decades ago, the Court relied on an

“analogy,” which was concededly “not precise,” to describe

the deference that courts should afford to Sentencing

Commission “commentary.” Stinson v. United States,

508 U.S. 36, 44 (1993). Specifically, the Court analogized

such commentary to an agency’s interpretation of its

own rules, and it held that a legal standard borrowed

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

410 (1945), would be the governing test. See 508 U.S. at

44–45. This analysis raised a question that the parties

now ask the Court to resolve in light of Kisor v. Wilkie,

588 U.S. 558 (2019): namely, whether Stinson held that

sentencing courts should apply Seminole Rock as that

deference doctrine continues to be elaborated by this

Court (the dynamic view), or whether Stinson instead

issued a freestanding test for commentary that borrowed a

formulation from Seminole Rock as it was then understood

without also incorporating all subsequent evolutions in

that jurisprudence (the static view).

FAMM does not take a position on that question.

But however the Court resolves this case, it should do

so in a manner that clearly recognizes the substantial

differences between Executive Branch administrative

agencies and the Sentencing Commission. As Chief Judge

Pryor has emphasized, the Commission “does not always

operate in the same manner as an executive agency,” and

“[f]ederal judges, above all officials, should not assume that

it does.” United States v. Dupree, 57 F.4th 1269, 1282 (11th

Cir. 2023) (Pryor, C.J., concurring). Characterizing the

Commission as though it were the same as any run-of-themill executive agency would risk “needless uncertainty.” Id.

Such uncertainty would be particularly concerning when it

comes to the Commission’s advisory (not regulatory) role

3

in the process of depriving individuals of their liberty. In

this context, an overly simplistic comparison to executive

agencies would overlook the special nature and functions of

the Commission, separation of powers principles, and the

rationales that support distinct levels of judicial deference

in distinct institutional settings.

We therefore highlight five principal distinctions

between the Commission and executive agencies that

demarcate respects in which the analogy deployed by

Stinson is (to reprise Stinson’s own caveat) “not precise.”

508 U.S. at 44. First, the Commission is fundamentally

judicial in character, rendering inapposite any concerns

about reflexive deference to the Executive. Second,

Congress maintains a far more active supervisory role

over the Guidelines (and related commentary) than it does

over any potentially analogous executive agency actions

or interpretations. Third, the Commission offers only

nonbinding guidance to courts in the exercise of their

sentencing power, unlike executive agencies that regulate

the primary conduct of private actors. Fourth, the unique

statutory structure and composition of the Commission

afford comparative insulation from the risk of arbitrarily

political legal interpretations. Finally, the Commission

is intended to maintain a more dynamic and mutually

engaged relationship with courts, and in some cases may

even overrule judicial interpretations of its handiwork,

which executive agencies cannot do.

These distinctions should be crucial to the Court’s

analysis in this case. Consistent with that understanding,

many judges drawn to the static view have emphasized

these points, which (in their view) explain why Kisor

did not disturb Stinson and militate as a matter of first

4

principles against applying Kisor here. See, e.g., United

States v. Vargas, 74 F.4th 673, 682–83 (5th Cir. 2023)

(en banc); United States v. Maloid, 71 F.4th 795, 808–13

(10th Cir. 2023); Dupree, 57 F.4th at 1284–85 (Grant, J.,

concurring in the judgment). Unfortunately, however,

these differences have often been minimized or ignored

by judges who think the dynamic view more naturally

follows from Stinson’s reasoning. See, e.g., United States

v. Mitchell, 120 F.4th 1233, 1239–40 (4th Cir. 2024); United

States v. Castillo, 69 F.4th 648, 656 (9th Cir. 2023); United

States v. Nasir, 17 F.4th 459, 471 (3d Cir. 2021) (en banc).

The latter tendency is mistaken. Any fair resolution

of this case—whether under the static view or the

dynamic view or some new standard—should recognize

the meaningful differences between the Commission

and executive agencies. Those differences may be taken

as support for adhering to Stinson’s original statement

of the legal standard under the static view. Or they may

be taken as a reason to clarify and nuance how Kisor’s

rendition of the Seminole Rock standard should apply

in this setting under the dynamic view. Either way, to

prevent confusion and doctrinal incoherence, the Court

should not treat the Commission as broadly equivalent to

executive agencies, and it should forthrightly identify how

the unique character of the Commission does (or does not)

affect the legal standard.

II. Similarly, and again without regard to which

deference rule it articulates, the Court should affirm

the importance of the rule of lenity in interpreting the

Guidelines and commentary.

5

This Court has long recognized the importance of

lenity in interpreting statutes that govern the imposition

of criminal penalties. To date, however, it has not

addressed how lenity applies to ambiguities in the wording

of the United States Sentencing Guidelines. When the

Guidelines were mandatory, most courts expressly

respected the “time-honored interpretive” principle of

lenity. Liparota v. United States, 471 U.S. 419, 427 (1985).

Following United States v. Booker, 543 U.S. 220 (2005),

though, some lower courts have erroneously wavered

from this principle in light of the now-advisory status of

the Guidelines.

The Court should correct that error. The core

principles that underlie the rule of lenity—fair notice to

the defendant, preservation of the separation of powers,

and protection of individual liberty—remain squarely

applicable in this setting. Even though the Guidelines

are not binding, they continue to exert a “gravitational

pull” on criminal sentencing. See Nasir, 17 F.4th at 474

(Bibas, J., concurring). As a result, without the compass

that lenity offers, the interpretation and application of the

Guidelines and commentary threaten to skew sentences in

a harsher direction than the Guidelines clearly warrant.

Moreover, applying lenity respects Congress’s ongoing

role in shaping the Guidelines and defining proper levels of

criminal punishment. And recognition of the rule of lenity

continues to ensure fair notice about potential sentencing

outcomes for crimes, while resolving ambiguities against

the deprivation of personal liberty.

The status of the rule of lenity may well be implicated

here. The relevant Guideline does not clearly classify a

17-round magazine as a “large capacity magazine,” but the

6

commentary does so. See U.S. Sent’g Guidelines Manual

§ 2K2.1 (U.S. Sent’g Comm’n 2025); id. cmt. n.2. The

rule of lenity would likely be relevant to an assessment

of whether this commentary squares with the Guideline

under any standard the Court articulates.

Accordingly, in describing how courts should interpret

the Guidelines and commentary, and without regard to

what level of deference the Court applies to commentary,

the Court should expressly recognize the value of the rule

of lenity in this context. More specifically, the Court should

confirm that lenity may serve as a tool of construction to

be applied prior to considering the commentary, or can

instead apply at the end of the interpretive process if

ambiguity persists once all texts (including the relevant

Guidelines provisions and commentary) are fully

considered.

ARGUMENT

I.

The Court Should Recognize and Reaffirm the

Unique Nature of the Sentencing Commission

In articulating the appropriate legal standard for

assessing commentary to the Guidelines—whether

under Stinson or Kisor or some new test—this Court

should again expressly recognize the uniqueness of the

Sentencing Commission, which is unlike any Executive

Branch administrative agency. That approach is most

faithful to precedent, respectful of the Commission’s role

and authority, and sensitive to the separation of powers.

Nor would it break new ground. This Court “has not

been silent about the distinctions between the sentencing

7

commission and administrative agencies.” United States

v. Dupree, 57 F.4th 1269, 1293 (11th Cir. 2023) (Luck,

J., dissenting); see also, e.g., United States v. Vargas, 74

F.4th 673, 682 (5th Cir. 2023) (en banc) (“[T]he Sentencing

Commission and administrative agencies are different

animals.”). Indeed, Mistretta v. United States confirmed

in the clearest of terms that “[t]he Sentencing Commission

unquestionably is a peculiar institution within the

framework of our Government.” 488 U.S. 361, 384 (1989).

As discussed below, that peculiarity encompasses the

Commission’s “unusual hybrid in structure and authority,”

id. at 412, as well as its “unique” statutory “composition

and responsibilities,” id. at 384.

By virtue of the Commission’s unique qualities, this

Court has generally avoided treating the Commission as

equivalent to an Article II administrative agency when

assessing how judges should evaluate (or defer to) the

Commission’s handiwork in the sentencing context. See,

e.g., id. at 380–411; United States v. LaBonte, 520 U.S.

751, 760 (1997); Beckles v. United States, 580 U.S. 256,

271 (2017) (Ginsburg, J., concurring).

The Court gave its closest consideration to that issue in

Stinson v. United States, 508 U.S. 36 (1993). In articulating

“ the standard that governs the decision whether

particular interpretive or explanatory commentary is

binding,” the Court did not wholesale apply Article II

administrative law principles to the Commission or pursue

a reductionist analysis that pictured the Commission as

equivalent to executive agencies. Id. at 43. Rather, the

Court reasoned by analogy. See id. (“Different analogies

have been suggested as helpful characterization of the

legal force of commentary.”). And even then, it adopted a

8

standard based on an analogy to executive agencies that

was “not precise” given Congress’s role in promulgating

the Guidelines. Id. at 44.

Regardless of whether the Court concludes that the

legal standard adopted in Stinson was static or dynamic

(or that some other standard should apply), Stinson’s

methodology—reasoning by self-consciously imperfect

analogy to executive agencies—remains sound. To

properly apply that methodology here, and to assess how

Stinson should be understood following Kisor (and also

following United States v. Booker, 543 U.S. 220 (2005)),

the Court should approach this case with clear-eyed

sensitivity to the many respects in which the Commission

differs from executive agencies. We will highlight five such

notable considerations.

First and foremost, whereas “the role of other federal

agencies is typically executive,” the Commission is

“judicial in nature.” United States v. Moses, 23 F.4th 347,

355 (4th Cir. 2022). Under the Sentencing Reform Act, the

Commission is “an independent commission in the judicial

branch of the United States.” 28 U.S.C. § 991(a). Thus,

although “the Commission is not a court, does not exercise

judicial power, and is not controlled by or accountable to

members of the Judicial Branch,” it is properly judicial

in character. Mistretta, 488 U.S. at 393. Concerns about

“reflexive deference to the executive branch”—some of

which animated the decision in Kisor—are therefore not

well placed here. See United States v. Maloid, 71 F.4th

795, 808–11 (10th Cir. 2023); see also id. at 811 (“[Kisor’s]

limitations on Seminole Rock deference ensure that

the Executive does not merge executive and legislative

9

functions or aggrandize its own authority. But those limits

make less sense for the Commission.”). 2

Second, as Stinson emphasized, Congress plays a

more active supervisory role concerning the Sentencing

Commission than it does with respect to executive

agencies. “[U]nlike an agency’s gloss on its regulations,

the Commission’s role in promulgating and interpreting

guidelines is sanctioned by statute.” Vargas, 74 F.4th

at 682. Under the Sentencing Reform Act, moreover,

Congress can “revoke or amend any or all of the Guidelines

as it sees fit . . . at any time.” Mistretta, 488 U.S. at 393–94.

And before a guideline amendment can take effect, the

Commission must submit it to Congress for review and

potential disapproval. See 28 U.S.C. § 994(p), (x). That

review process is not a formality: between 1987 and

2004, for instance, Congress directed the Commission

to alter the Guidelines Manual more than 80 times. See

Maloid, 71 F.4th at 811 n.19. Although the Commission

is not statutorily obliged to submit commentary for

congressional review, it does so in most cases. See Dupree,

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

commentary ordinarily goes through the same noticeand-comment and congressional review procedures as

substantive guideline revisions.”); John S. Acton, Note,

The Future of Judicial Deference to the Commentary of

the United States Sentencing Guidelines, 45 Harv. J. L.

2. In the same vein, Section 706 of the Administrative

Procedure Act—which underwrote aspects of Kisor’s reasoning

about judicial deference to executive agencies—does not apply

to the Guidelines or the commentary. See Maloid, 71 F.4th at 810.

10

& Pub. Pol’y 349, 357 (2022). 3 Here, too, the Commission’s

practice is not a formality: “History reflects that Congress

has actively overseen the substance of the commentary to

the Guidelines.” United States v. Rivera, 76 F.4th 1085,

1090 (8th Cir. 2023) (citing examples). Because “Congress

retains the ultimate authority over sentencing practices,”

and because it “serves as a check on too much deference,”

the Commission is differently situated in salient respects

from executive agencies. Maloid, 71 F.4th at 812.4

3. The Sentencing Reform Act authorized and directed the

Commission to develop and promulgate two forms of guidance for

courts: “guidelines” and “policy statements.” See 28 U.S.C. § 994

(a)(1), (a)(2). Interpretive “commentary” on the Guidelines, as such,

is not mentioned. In the Guidelines Manual, the Commission placed

definitions of terms used in a Guideline in the Application Notes,

labeled as a form of “Commentary” to that Guideline (or if used

more pervasively, in USSG § 1B1.1, note 1), plainly not intending

those definitions to serve as mere “general policy statements.” It is

therefore appropriate and unsurprising that when submitting the

text of a new or amended Guideline to Congress under 28 U.S.C.

§ 994(p), the Commission also regularly submits the associated

Commentary, including the Application Notes.

4. As the Fourth Circuit has recognized, these differences

are sharpened by a comparison of the processes by which the

Commission and executive agencies issue interpretations: “Unlike

the formally published Guidelines Manual that includes not only

Guidelines and policy statements but also official commentary, all

three of which were, in practice, generally promulgated by the

notice-and-comment and congressional-submission procedure

and which operate together as a reticulated whole, executive

agency interpretations have been made more casually and broadly

through, for example, the issuance of letters, opinions, press

releases, and legal briefs. . . .” Moses, 23 F.4th at 355.

11

Third, unlike executive agencies, the Commission

does not “regulate the broad range of people covered by

the particular agency’s jurisdiction.” Moses, 23 F.4th at

355. Put differently, the Commission lacks “enforcement

or investigative authority” and does not regulate the

primary conduct of private actors. Maloid, 71 F.4th at 807.

Rather, the Commission acts only to assist courts—and

to advance statutorily specified sentencing goals—by

providing “guidance to district judges tasked with the

duty of imposing an individualized sentence on a criminal

defendant.” Moses, 23 F.4th at 355; see also Maloid, 71

F.4th at 807 (“[W]hen the Commission speaks, it speaks as

an agent of the Judiciary to help judges properly sentence

defendants.”). And even in this comparatively limited

function, the Commission’s guidance does not bind the

Judiciary. See Booker, 543 U.S. at 245. As Judge Grant

has remarked, these distinctions between guidelines and

ordinary administrative rules are truly “fundamental”

when it comes to assessing deference. Dupree, 57 F.4th

at 1284 (Grant, J., concurring in the judgment). 5

Fourth, whereas executive agencies may base their

legal interpretations on “policy concerns” as agents of

the President, Kisor v. Wilkie, 588 U.S. 558, 570 (2019)

(plurality opinion), the structure of the Sentencing

Commission avoids such dependence on the shifting policy

5. In addition, because the Commission at most structures

the discretion of district judges, it lacks “incentive to promulgate

imprecise guideline provisions and commentary that leave

defendants and judges unsure of how the Guidelines work.”

Maloid, 71 F.4th at 813. “That’s different from executive agencies

that can enact vague regulations and wait for later adjudications

or litigations to clarify those regulations’ meanings.” Id.

12

preferences of a single official. Unlike executive agencies,

whose leadership is ordinarily appointed by the President

and subject to diverse means of presidential control, the

Commission has a bespoke structure. Compare, e.g., Seila

Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197

(2020), with Mistretta, 488 U.S. at 397–408. By statute,

the Commission is composed of seven voting members,

who are appointed by the President and confirmed by the

Senate, and one nonvoting member. 28 U.S.C. § 991(a). At

least three Commissioners must be federal judges. Id.

No more than four may be members of the same political

party. Id. And commissioners may be removed by the

President “only for neglect of duty or malfeasance in

office or for other good cause shown.” Id. These features

of the Commission provide a measure of insularity from

the political or policy-driven decisions that may occur at

executive agencies.6

Finally, Congress and this Court have recognized

that the Commission may review the work of federal

courts and issue amendments that effectively overrule

judicial interpretations of the Guidelines. See, e.g.,

Stinson, 508 U.S. at 46. “In fact, [Stinson] explicitly

endorsed using amendments to the commentary to effect

a change in interpretation of the overall Guidelines.”

Dupree, 57 F.4th at 1285 (Grant, J., concurring in the

judgment) (emphasis omitted). Stinson thus “embraced a

world in which the Commission (not the judiciary) would

authoritatively resolve disputes about the Guidelines

and the commentary—and could even reject judicial

6. When there is evidence of distorted decisionmaking at the

Commission, moreover, this Court has not hesitated to act. See,

e.g., Kimbrough v. United States, 552 U.S. 85 (2007).

13

interpretations of the Guidelines by amending the

commentary.” Id. That understanding of the role and

authority of the Commission further separates it from

most executive agencies and highlights that the dynamic

between the Commission and the courts is materially

different in character.

In resolving this case and clarifying the proper

application of Stinson—whether under the dynamic view

or the static view or a new test—the Court should explicitly

recognize and account for these vital distinctions between

the Commission and executive agencies. See Dupree, 57

F.4th at 1282 (Pryor, C.J., concurring). Some of these

distinctions were not yet knowable or appreciated when

Stinson itself was decided just a few years after Congress

created the Commission (e.g., it was not yet known that

the Guidelines would subsequently be rendered advisory,

or that the Commission would make a common practice of

submitting proposed commentary to Congress for review).

Others may now loom larger in importance under recent

decisions—like Kisor—clarifying the basis and limits of

judicial deference to executive agencies. And still others

lurked beneath the surface in Stinson and may now

warrant closer scrutiny as the Court revisits and unpacks

Stinson’s analogy to Seminole Rock principles.

Regardless of how the Court resolves this case,

doing so with express attention to the many differences

between executive agencies and the Commission will avoid

confusion in sentencing law, honor precedent, respect

separation of powers principles, and promote coherence

in administrative law. It will also support the important

role played by the Commission in ensuring that federal

sentences, both as suggested in the Guidelines Manual

14

and as imposed by individual judges, are never “greater

than necessary” to achieve the multiple purposes of

punishment. 18 U.S.C. § 3553(a). For all those reasons,

the Court should exercise due care in how it describes and

deploys the “not precise” analogy that animated Stinson.

II. The Court Should Recognize the Role of Lenity in

Interpreting the Guidelines and Commentary

In addition to reaffirming the Commission’s unique

status, and regardless of the deference standard it

adopts, the Court should take the opportunity in this

case to clarify the role that lenity plays with respect to

the Guidelines and their interpretive commentary. Such

clarification would be highly valuable to sentencing judges

in properly interpreting the Guidelines and commentary

while engaging in any version of the deference analysis

at issue here.

The rule of lenity holds 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 applies whenever, after applying the

standard techniques of textual construction, “a reasonable

doubt persists about a statute’s intended scope.” Moskal v.

United States, 498 U.S. 103, 108 (1990); see also Harrison v.

Vose, 50 U.S. (9 How.) 372, 378 (1850) (“In the construction

of a penal statute, it is well settled, also, that all reasonable

doubts concerning its meaning ought to operate in favor

of the respondent.”). This Court has long recognized that

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). For good reason: the principles

15

that animate the rule of lenity apply with no less force

when a defendant is sentenced than they do when a jury

assesses guilt.

In the pre-Booker era of mandatory Guidelines, most

courts held that the rule of lenity applied to ambiguous

provisions of the Guidelines. See United States v. Wright,

607 F.3d 708, 718 (11th Cir. 2010) (Pryor, J., concurring)

(collecting cases). Following Booker, most courts continue

to accept that position—implicitly recognizing that the

advisory status of the Guidelines does not disturb the

continued role of lenity in sentencing law. See, e.g., United

States v. Mitchell, 120 F.4th 1233, 1240 (4th Cir. 2024)

(“An ambiguous Guideline is also subject to the rule of

lenity.”); United States v. Canelas-Amador, 837 F.3d 668,

674 (6th Cir. 2016) (“[W]e may apply the rule of lenity to

matters relating to the Sentencing Guidelines.” (internal

quotation marks omitted)). Some courts, however, have

rejected lenity’s application based on the advisory nature

of the Guidelines. See, e.g., United States v. Smith, 977 F.3d

431, 435 (5th Cir. 2020) (“[I]t appears the rule of lenity

no longer applies to the purely advisory Guidelines.”);

Wright, 607 F.3d at 719 (Pryor, J., concurring) (“[I]t

is doubtful that the judicial interpretation of advisory

Sentencing Guidelines promulgated by an independent

commission implicates either of the twin concerns that

motivate the rule of lenity.”).

This case affords a natural opportunity to resolve

that debate. Under any deference standard that the Court

adopts, judges will be required to properly interpret the

Guidelines and associated commentary and to examine the

relationship between them. To do so, judges need guidance

on the role that lenity should play in such interpretations.

16

And there is a clear answer: the rule of lenity should guide

a court’s interpretation of the Guidelines just as it does

for associated penalty statutes. The advisory nature of

the Guidelines does not dispel the need to apply lenity

to ensure adherence to the foundational constitutional

principles that this “time-honored interpretive guideline”

was designed to reinforce. Liparota v. United States, 471

U.S. 419, 427 (1985).7

A.

The Principles Underlying the Rule of Lenity

Are Applicable to the Guidelines

The rule of lenity reflects three fundamental principles

of our constitutional system: fair notice to the defendant;

protecting the separation of powers; and safeguarding

individual liberty. See United States v. Nasir, 17 F.4th

459, 473 (3d Cir. 2021) (en banc) (Bibas, J., concurring);

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

76, 95 (1820). First, construing ambiguous statutory

texts narrowly protects due process by “ensur[ing] that

criminal statutes will provide fair warning concerning

conduct rendered illegal.” Liparota, 471 U.S. at 427. The

animating concern is straightforward: no person should

face criminal punishment—or an enhancement in criminal

punishment—based on statutory language whose meaning

cannot reasonably be discerned. See Bifulco, 447 U.S. at

387. Second, the rule preserves the separation of powers

by ensuring that courts do not expand liability beyond

what Congress has clearly prescribed. By requiring courts

to construe ambiguous language against the government,

lenity prevents courts from assuming a legislative role

7. See also Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 297 (2012).

17

in determining punishment and “strikes the appropriate

balance between the legislature, the prosecutor, and the

court in defining criminal liability.” Liparota, 471 U.S.

at 427. Third and finally, the rule of lenity safeguards

individual liberty. It “serves our nation’s strong preference

for liberty” and effectuates “our ‘instinctive distaste

against [people] languishing in prison unless the lawmaker

has clearly said they should.’” Nasir, 17 F.4th at 473 (Bibas,

J., concurring) (quoting Henry J. Friendly, Mr. Justice

Frankfurter and the Reading of Statutes, in Benchmarks

196, 209 (1967)); see Wiltberger, 18 U.S. (5 Wheat.) at 95

(lenity is “founded on the tenderness of the law for the

rights of individuals”).

Each of these principles applies in this setting and

supports applying lenity principles to the post-Booker

Guidelines scheme.

Fair Notice. No less than for penalty assessments

found in statute, criminal defendants have a substantial

notice interest in predictable sentencing range calculations

under the Guidelines. Even following Booker, the

Guidelines remain the starting point and lodestar for

federal sentencing. See Peugh v. United States, 569

U.S. 530, 541 (2013). In practice, they often “exert a

law-like gravitational pull on sentences.” Nasir, 17 F.4th

at 474 (Bibas, J., concurring). The data bears out this

gravitational effect: The Sentencing Commission reported

in 2019 that 75% of defendants received sentences that

were either within the Guidelines range or justified by a

Guidelines ground for departure. Id. (citing U.S. Sent’g

Comm’n, 2019 Annual Report and Sourcebook of Federal

Sentencing Statistics 8). By placing a thumb on the scale

for leniency when Guidelines provisions are ambiguous,

18

the rule of lenity protects defendants’ interests in fair

notice and predictability of the penalty that applies to

their conduct.

Separation of Powers. The rule of lenity also serves

an important structural function in the context of the

Guidelines. Although the Commission, not Congress,

promulgates the Guidelines, Cong ress maintains

significant authority to shape and control the Guidelines

and commentary. See supra at 9–10. The application

of lenity principles to resolve any ambiguities in

the Guidelines thus respects the text that Congress

considered and avoids the risk that a sentencing decision

will be influenced by a Guidelines range that is higher

than Congress in fact desired.

Liberty Interest. When a Guidelines provision is

ambiguous, the rule of lenity protects the defendant’s

liberty interest by requiring the court to adopt the more

lenient plausible reading. Irrespective of the Guidelines’

nature, this “presumption of liberty remains crucial to

guarding against overpunishment.” Nasir, 17 F.4th at 474

(Bibas, J., concurring). That is particularly true given

the continued force and influence of the Guidelines—and

given the risk that an ambiguous Guideline or commentary

may drastically increase sentencing ranges. See, e.g.,

United States v. Abreu, 32 F.4th 271, 273–74 (3d Cir. 2022)

(explaining that applying commentary treating conspiracy

as a “crime of violence” would have raised the defendant’s

advisory Guidelines range from 27–33 months to 51–63

months). The application of lenity to the Guidelines protects

individual liberty by ensuring that unclear Guidelines

provisions do not increase the level of punishment unless

the harsher reading is clearly authorized.

19

B. Lenity Principles Should Apply Regardless of

the Standard for Deference to Commentary

These weighty reasons for applying the rule of lenity

to resolve ambiguities in the Guidelines do not turn on

whether the Court adopts the dynamic or the static view

of Stinson (or instead fashions a new legal standard).

Regardless of the deference owed to the commentary,

lenity should play a role in interpreting and resolving

ambiguities in the Guidelines and commentary.

There are two distinct ways in which the rule of lenity

may operate here. First, lenity can apply to the initial

interpretation of the Guidelines before deference to the

commentary comes into play. If a Guideline itself does not

clearly reach certain conduct, the commentary should not

be allowed to expand the Guideline to cover that conduct

unless the Guideline can fairly bear that reading in the

first place. In the parlance of Stinson, commentary that

resolves ambiguities in the Guidelines against, rather

than in favor of, the defendant would be “inconsistent

with . . . [the relevant] guideline.” 508 U.S. at 38. Or, to

use the language of Kisor, lenity is one of the “traditional

tools of construction” that courts must exhaust before

deferring to the commentary. 588 U.S. at 575 (cleaned up).

On either view, if lenity resolves the ambiguity in favor of

the defendant, deference to harsher commentary is not

warranted. See United States v. Chandler, 104 F.4th 445,

464 (3d Cir. 2024) (Bibas, J., dissenting).

Second, the rule of lenity could inform a court’s

resolution of a sentencing question if ambiguity remains

even after it considers the Guidelines and relevant

20

commentary. In such instances, the tie should go to the

defendant to honor principles of fair notice and individual

liberty. See United States v. Tony, 121 F.4th 56, 70 (10th

Cir. 2024) (invoking lenity and finding in favor of the

defendant after “[h]aving exhausted all sources from

which interpretive guidance may be derived,” including

commentary).

These applications of lenity retain a vital role for

commentary that is sufficiently consistent with the

Guidelines and that does not freelance in favor of harsher

punishments than plainly prescribed by the Guidelines.

Put differently, lenity does not “displace[] neutral or

defendant-friendly commentary.” Chandler, 104 F.4th

at 464 (Bibas, J., dissenting). Instead, it acts only to dull

the harsh edges of atextual commentary that threatens

individual liberty, denies fair notice, and undermines the

separation of powers.

To afford sentencing judges clarity about the nature

of their interpretive endeavor—with respect to both the

Guidelines and the commentary and the relation between

them—this Court should thus clarify that the panoply

of interpretive principles to be deployed in this context

includes the traditional rule of lenity.

21

CONCLUSION

For the reasons given above, the Court should

reaffirm and recognize the uniqueness of the Sentencing

Commission, which is fundamentally unlike executive

agencies, and should confirm that the rule of lenity applies

when judges interpret the Guidelines and their associated

interpretive commentary.

Respectfully submitted,

George Carpenter

Hecker Fink LLP

350 Fifth Avenue,

63rd Floor

New York, NY 10118

Joshua Matz

Counsel of Record

Trisha A nderson

Taisa M. Goodnature

Hecker Fink LLP

1050 K Street NW,

10th Floor

Washington, DC 20001

(212) 763-0883

jmatz@heckerfink.com

Counsel for Amicus Curiae