Kisor v. Wilkie as a Limit on Auer Deference in the Sentencing Context

• Publication year: 2021

Kisor v. Wilkie as a Limit on Auer Deference in the Sentencing Context

Jarrett Faber

KISOR V. WILKIE AS A LIMIT ON AUER DEFERENCE IN THE SENTENCING CONTEXT

Abstract

While there has been increased attention on the necessity of criminal justice reform in the United States, limited attention has been paid to the role that the United States Sentencing Commission has played in exacerbating the very problems that it was designed to address. Though the Sentencing Commission was initially envisioned as a body that would protect criminal defendants from sentencing disparities, it has morphed into a body that has limited effectiveness in reaching that goal due to its misuse of commentary as a tool to effect substantive change in sentencing policy to the detriment of criminal defendants. Commentary was initially designed as a flexible tool that the Sentencing Commission could use to interpret and explain the sentencing guidelines, but it has increasingly been used by the Commission to replace amendments to the guidelines themselves. This shift might seem insignificant on its face, but, in reality, it has subjected criminal defendants to years of additional imprisonment in the absence of the protections that Congress initially intended, because courts have been required to defer to this commentary in most cases by an administrative law doctrine known as Auer deference.

This Comment proposes that the Supreme Court's recent decision in Kisor v. Wilkie to integrate the test for Chevron deference into the test for Auer deference presents an opportunity for courts to address this problem. This Comment then argues that courts should strictly apply the traditional tools of statutory construction and use the rule of lenity in determining whether (1) a sentencing guideline is genuinely ambiguous and (2) the Sentencing Commission's interpretation of that guideline in commentary is reasonable. Applying the test for Auer deference in this manner would drastically reduce the frequency with which commentary receives deference from the courts, something that would protect criminal defendants from changes in sentencing policy that are enacted in the absence of the protections provided for in the Sentencing Reform Act. Moreover, this change would encourage the Sentencing Commission to make substantive changes to sentencing policy by amending the sentencing guidelines themselves—not by amending the commentary—which would benefit criminal defendants and society more generally.

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Introduction.............................................................................................907

I. The Sentencing Commission, The Guidelines Manual, and the Federal Criminal Justice System...............................................911

A. The Movement Toward Sentencing Reform .............................. 912
B. The Sentencing Reform Act of 1984 and the Origin of the Sentencing Commission............................................................ 915
C. Constitutional Challenges to the Sentencing Commission and the Guidelines Manual ............................................................. 917

II. Deference to an Agency's Interpretation of Its Own Regulations....................................................................................919

A. An Introduction to Administrative Deference Doctrines .......... 919
B. Seminole Rock—The Origin of Deference to an Agency's Interpretations of Its Own Regulations .................................... 921
C. Auer—Deference to an Agency's Interpretation of Its Own Regulations Under a Modern Rationale................................... 922
D. Criticism of Auer Deference and Increased Skepticism Toward the Doctrine .............................................................................. 923

1. Early Criticism of Seminole Rock Deference .................... 923
2. Growing Discontent: The March Toward Kisor ................ 926

E. Kisor—A New Test Limiting the Scope of Auer Deference 928

III. The Intersection of the Sentencing Guidelines and Auer Deference........................................................................................932

A. Stinson—The Applicability of Auer Deference to the Guidelines Manual's Commentary ............................................................. 933
B. Problems with Auer Deference in the Sentencing Context....... 935

IV. A Solution—Using the New Multi-Step Test from Kisor to Limit Auer Deference in the Sentencing Context...................939

A. Text, Structure, History, and Purpose of the Sentencing Guidelines................................................................................. 939
B. Lenity and Other Substantive Canons of Construction ............ 942

1. The Origin, Application, and Operation of Lenity ............. 943
2. How Lenity Interacts with Chevron Deference .................. 946
3. How Lenity Should Interact with Auer Deference.............. 947

C. The Result—A More Limited Role for Commentary................. 951

Conclusion.................................................................................................953

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Introduction

Like 97.4% of federal defendants convicted of felony or class A misdemeanor offenses,¹ Miguel Nieves-Borrero entered into a plea agreement with the federal government.² As part of the plea agreement, Mr. Nieves pleaded guilty to aiding and abetting a convicted felon in the possession of a firearm,³ and the government agreed that the recommended punishment under the federal sentencing guidelines was ten to sixteen months of imprisonment.⁴ Mr. Nieves and the government also "agree[d] to recommend a term of imprisonment at the lower end of the applicable [sentencing] guideline range."⁵ Unfortunately for Mr. Nieves, the court was not bound to the sentence recommended in this plea agreement.⁶ Instead, as part of the sentencing process, the court considered a presentence report—prepared by a probation officer—which recommended a sentence that drastically departed from the one that the government had agreed to recommend.⁷

The presentence report, unlike the plea agreement, accounted for Mr. Nieves's two prior convictions, which triggered a prior offense enhancement⁸

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under the sentencing guidelines.⁹ Because of these prior convictions, the presentence report calculated that the applicable sentencing guidelines range for Mr. Nieves was seventy to eighty-seven months of imprisonment,¹⁰ which stood in stark contrast to the fifteen months of imprisonment that the government had ultimately recommended at Mr. Nieves's sentencing hearing.¹¹ Considering all the relevant sentencing factors, the court sentenced Mr. Nieves to seventy months of imprisonment.¹² While the sentence itself is jarring in light of the government's recommendation, the most alarming aspect is the role that administrative law played in depriving Mr. Nieves of his liberty at an extreme expense to his family¹³ and the State.¹⁴

Through an administrative deference doctrine known as Auer deference,¹⁵ the Supreme Court has counseled that deference to an administrative agency's interpretation of its own regulation is appropriate "unless [the interpretation] is plainly erroneous or inconsistent with the regulation."¹⁶ And, the Supreme Court has sanctioned the use of Auer deference in the context of federal sentencing, so courts frequently have to defer to the Sentencing Commission's interpretations of the sentencing guidelines as they are presented in commentary.¹⁷ The Supreme court has consistently found that such deference is appropriate despite the troubling fact "that the Sentencing commission wields the authority to dispense 'significant, legally binding prescriptions governing application of governmental power against private individuals—indeed, application of the

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ultimate governmental power, short of capital punishment.'"¹⁸ While some judges have resisted the use of Auer deference in the sentencing context,¹⁹ the Supreme Court has neglected to revisit the doctrine's application to commentary,²⁰ leaving criminal defendants like Mr. Nieves at the whim of the Sentencing Commission—an appointed body that does not reflect Congress's original intent.²¹

In Mr. Nieves's case, the failure of his plea agreement to consider his two prior convictions was erroneous, and the presentence report and court were correct to consider these convictions as part of the sentencing process.²² However, the application of a prior offense enhancement for one of these convictions—attempt to possess with intent to distribute controlled substances—was extremely problematic and troublesome, as the enhancement was based solely on an interpretation of the underlying sentencing guideline that the Sentencing Commission had advanced through commentary.²³

The sentencing guideline applicable to Mr. Nieves's underlying offense of aiding and abetting a convicted felon in the possession of a firearm provided for a variety of prior offense enhancements where "the defendant committed any part of the instant offense subsequent to sustaining one [or more] felony conviction[s] of either a crime of violence or a controlled substance offense."²⁴ Commentary to this guideline defined the term "controlled substance offense"

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by referring to another guideline and the commentary that accompanied it.²⁵ Significantly, the referenced guideline unambiguously provided that "the term 'controlled substance offense' mean[t] an offense under federal or state law . . . that prohibit[ed] the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense."²⁶ Yet, the commentary purporting to interpret this guideline provided for a much broader definition of the term "controlled substance offense," which included "the offenses of aiding and abetting, conspiring, and attempting to commit such offenses."²...