AuthorSteininger, Tim


Sentencing doctrine has consequences. Consider United States v. Moses and United States v. Campbell (2) which the Fourth Circuit decided a mere twelve days apart. Each opinion was well reasoned and arguably correct. Still, only one panel deferred to the Sentencing Commission's interpretation of its Guidelines, and that deference led to a three hundred percent increase in the length of the defendant's sentence.

On January 19, 2022, a panel for the Fourth Circuit affirmed a district court judgment that applied a career-offender enhancement to Lenair Moses' sentence. (3) Moses pleaded guilty to two counts of distributing cocaine after twice selling crack cocaine to confidential informants. (4) The two predicate offenses warranting enhancement under the Sentencing Guidelines were 2009 and 2013 felony convictions for possession with intent to distribute. (5) However, Moses argued that his 2013 conviction qualified as "relevant conduct" under section 1B1.3 for the conviction in question, and therefore could not serve as a predicate offense. (6) Rejecting Moses' argument, the Fourth Circuit deferred to the commentary's interpretation of section 1B1.3, which defines "relevant conduct" as excluding "offense conduct associated with a [prior] sentence." (7) In deferring to the commentary's interpretation, the court applied Stinson v. United States (8) and held that the commentary was binding unless it "violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, [the] guideline." (9) The court also concluded that Kisor v. Wilkie (10) was inapplicable to the Commission's commentary. (11)

Twelve days earlier, a separate Fourth Circuit panel vacated the sentence in United States v. Campbell because the district court improperly imposed a career-offender enhancement. (12) Like Moses, the district court sentenced Campbell as a career offender based on two predicate convictions under section 4B1.1. (13) Campbell objected because the Guideline definition of "controlled substance offense" did not include attempt offenses. (14) If attempt offenses did not count as prior convictions, Campbell would not qualify as a career offender. (15) However, the relevant commentary provides that controlled substance offenses include "attempt[s] to commit such offenses." (16) The court declined to defer to the Commission's interpretation because it found the text of the Guideline and commentary plainly inconsistent under Stinson. (17) The panel also suggested that Kisor abrogated Stinson, but concluded the result would be the same regardless of which case applied. (18)

In light of the apparent discrepancy, Moses filed a petition for rehearing en banc. Since the panel in Campbell concluded that deference was inappropriate under both Stinson and Kisor, the Fourth Circuit disagreed as to whether there was an actual conflict between Campbell and Moses. Ultimately, a majority of the Fourth Circuit voted to deny the petition for rehearing, with Judge Niemeyer noting that both cases relied on Stinson for their holding and that any inconsistency concerning Kisor was dicta. (19) Four judges disagreed, with Judge Wynn arguing that Moses' conclusion concerning Kisor "flatly contradict[ed]" the holding in Campbell that Kisor did apply to the commentary. (20)

This issue is not endemic to the Fourth Circuit. The issue of how much deference to give the Commission's commentary has been splitting federal courts for years. To date, every circuit that hears criminal cases has spoken on the issue. (21) The results have been far from uniform. (22) And there is no sign of help from the Supreme Court. (23) Thus, lower courts have been left to themselves to find a workable solution.

The issue stems from two Supreme Court cases: Stinson v. United States and Kisor v. Wilkie. Stinson, decided in 1993, directly addressed the deference due the Commission's interpretations of its Guidelines. (24) It concluded that the Commission's commentary was binding on courts unless it "violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, [the] guideline." (25) The two cases are members of the same doctrinal family tree; Stinson applied what was then known as Seminole Rock deference. (26) Over time, Seminole Rock deference was rebranded as Auer deference. (27) Then, in 2019, a splintered Court in Kisor significantly cabined Auer's applicability. (28) Before affording deference under Kisor, federal courts must now engage in a multistep analysis to determine if deference is warranted. (29) For clarity's sake, I will refer to the doctrine as Kisor deference or agency deference unless specifically referring to other cases.

Recently, judges and commentators have suggested that courts use the rule of lenity when deciding whether to defer to commentary. (30) Under this approach, courts faced with an ambiguous Guideline could use lenity to resolve ambiguity in the defendant's favor rather than deferring to commentary. The result would be a fundamentally different form of deference in the criminal context. This would be problematic and unnecessary. Kisor already accounts for two primary concerns underlying criminal law and lenity specifically--due process and the separation of powers. And to the extent other considerations unique to criminal law weigh in favor of tweaking deference, lenity is the wrong tool to use. Lenity's application over the years can only be characterized as inconsistent. (31) For deference purposes, that flaw is critical. A weak form of lenity would never apply in the Kisor framework. A strong form would act as a categorical exception to agency deference in the criminal context and implicitly overrule Stinson. This Note argues that instead of applying lenity, courts should focus on whether the commentary interprets or expands the Guidelines. (32) The inquiry is mandated by the Administrative Procedure Act (APA) because the Act requires that legislative rules-but not interpretive rules--satisfy statutory rulemaking procedures. (33) For commentary that does not satisfy those requirements, there are two possibilities. If the commentary interprets a Guideline, the court and Commission share interpretive authority, which is already the status quo under Kisor. If the commentary expands a Guideline, courts retain absolute interpretive authority and withhold deference, shifting the burden back to the Commission to amend the commentary or subject it to notice and comment. (34) That congressional control protects the separation of powers; it ensures that the Commission's substantive changes to sentencing rules reflect the values of the community. Since judges make the initial determination that the Commission is using commentary to expand or interpret Guidelines, this approach also maintains a meaningful role for judges in "say[ing] what the law is." (35) Moreover, the approach can help mend the circuit split and facilitate uniformity because only agency interpretations can warrant deference under Stinson and Kisor.

In the sentencing context, the stakes of deference are higher. An individual's liberty is often on the line. Provisions like the career-offender enhancement can lead to drastic increases in the length of a given sentence. But there is no need for a categorically different approach to deference. Such an approach would give the Sentencing Commission less interpretive authority than any other agency. In specific criminal cases, there may be legitimate reasons to refuse deference, reasons that Kisor does not account for. (36) If so, strictly construing the inquiry--leaning toward finding commentary is a legislative rule--provides flexibility to withhold deference without flouting Supreme Court precedent. It also requires that the Commission check its approach for consistency with popular values by subjecting it to congressional control. Absent those legitimate reasons, a court should defer to commentary when appropriate under whichever case--Kisor or Stinson--its circuit follows.

This Note proceeds as follows: Part I introduces the United States Sentencing Commission, the rule of lenity, Stinson, and Kisor. Part II discusses the various circuit approaches to deference and commentary. Part III argues that distinguishing between interpretive and legislative rules presents a workable approach to deference in the sentencing context. Part IV responds to counterarguments and concludes.


    1. The United States Sentencing Commission

      Congress created the United States Sentencing Commission in 1984 through the Sentencing Reform Act. (37) The Act established the Commission as an independent agency within the judicial branch, with seven voting members and two nonvoting members. (38) The voting members are appointed by the President and confirmed by the Senate, and at least three of the members must be federal judges. (39) Congress identified several purposes the Commission would serve. These include providing certainty and fairness in sentencing, avoiding sentencing disparities among similarly situated criminal defendants, and retaining sufficient flexibility to tailor individual sentences when warranted. (40)

      The Commission is tasked with promulgating Guidelines and general policy statements regarding the application of those Guidelines. (41) The Guidelines are subject to the APA's notice-and-comment requirements, (42) and Congress can revise or reject amendments to the Guidelines within 180 days of their proposal. (43) In addition to Guidelines and policy statements, the Commission publishes commentary. The Guidelines Manual specifies that, in relevant part, the commentary can "interpret the guideline or explain how it is to be applied." (44)

      Originally, the Guidelines bound sentencing judges with limited exceptions. (45) However, the Supreme Court in United States v. Booker concluded that mandatory application of the Guidelines violated the Sixth...

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