Legislating through the use of commentary: the Sentencing Commission's interpretation of section 994(h) of the Sentencing Reform Act.

AuthorKnox, Jeffrey H.
PositionSupreme Court Review - Case Note

United States v. LaBonte, 117 S. Ct. 1673 (1997)

  1. INTRODUCTION

    In United States v. LaBonte,(1) the United States Supreme Court held that 28 U.S.C. [sections] 994(h) unambiguously requires a court, when sentencing a third-time drug or violent felon, to impose the maximum prison term available for the offense of conviction, including all applicable statutory enhancements.(2) As a result, the Court invalidated the United States Sentencing Commission's promulgation of commentary added by Amendment 506, which instructed sentencing courts to apply unenhanced statutory maximums when sentencing career offenders.(3) This Note concludes that, while the Court reached the correct outcome, its analysis overlooked an important procedural error in the Commission's adoption of Amendment 506.(4) First, this Note establishes that the commentary added by Amendment 506 is not a permissible function of Sentencing Guidelines commentary.(5) Next, it argues that the Court's application of the Stinson standard(6) to determine whether Amendment 506 is binding

    on federal judges was incorrect.(7) Stinson's holding is limited to commentary that interprets guidelines,(8) Given that Amendment 506 interprets a federal statute(9) rather than a guideline, it falls outside of Stinson's purview.(10)

    Further, this Note contends that application of the Chevron standard to determine whether Amendment 506 binds federal incorrect.(11) The Chevron standard applies judges also would be to guidelines, not commentary.(12) This Note concludes that Amendment 506 is invalid, irrespective of its plausibility or the Sentencing Reform Act's ambiguity.(13) Finally, this Note discusses the long-term implications of the Court's failure to address the Commission's use of commentary to legislate.(14)

  2. BACKGROUND

    1. THE SENTENCING REFORM ACT OF 1984

      Prior to 1984, a three-way sharing of federal sentencing responsibilities existed among Congress, federal judges, and the federal parole board.(15) Congress passed statutes specifying maximum penalties for crimes, judges had discretion in deciding what sentence to impose, and the federal parole board--an agency within the executive branch--determined the actual duration of imprisonment.(16) As a result, similar offenders often served vastly different terms for similar crimes, depending upon the particular sentencing judge and parole board.(17)

      In response to widespread criticism of this indeterminate and uncertain sentencing system, Congress implemented the Sentencing Reform Act of 1984 (the Act).(18) In addition to abolishing parole,(19) mandating determinate sentences,(20) and authorizing limited appellate review,(21) the Act consolidated the sentencing judge and Parole Commissioner's powers in the United States Sentencing Commission (the Commission).(22) Congress directed the Commission to formulate federal sentencing guidelines that would balance Congress' general goals of "reduction of disparity, proportionality and administrability."(23) The Commission, an eight-member independent body within the judicial branch,(24) attempted to implement these "sometimes conflicting"(25) goals through its promulgation of the United States Sentencing Guidelines.(26)

    2. UNITED STATES SENTENCING GUIDELINES

      1. General Methodology

        In the Sentencing Reform Act, Congress directed the Commission to "promulgate and distribute to all courts of the United States... guidelines... for use of a sentencing court in determining the sentence to be imposed in a criminal case."(27) The Sentencing Guidelines, the product of this directive, establish determinate sentencing ranges that reflect a federal criminal offender's prior criminal record and offense characteristics.(28) Pursuant to the Guidelines, a judge determines a federal offender's sentence through a three-step process. First, following conviction, the sentencing judge assigns the offender one of six "criminal history categories," which reflects the offender's prior criminal record, and one of forty-three "offense levels," which accounts for particular offense characteristics.(30) The Guidelines direct the judge as to the appropriate "category" and "level."(31) Second, the judge consults the sentencing table, a grid composed of forty-three rows (offense levels) and six columns (criminal history categories).(32) The intersection of the offender's category and level specifies a range of months of imprisonment.(33) Finally, the judge sentences the offender within the range, unless there exists an "aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines."(34) Should this occur, the judge has the "departure authority" to sentence outside of the range through either downward or upward departures.(35)

      2. Career Offender Methodology

        While Congress granted the Sentencing Commission broad discretion in establishing sentencing ranges for federal offenders, it expressly limited this discretion with respect to sentencing "career offenders."(36) Section 994(h) of the Sentencing Reform Act directs the Commission to assure that the Guidelines specify prison sentences "at or near the maximum term authorized for categories" of adult offenders convicted of their third felony violent crime or drug offense.(37) In response, the Commission promulgated the Career Offender Guideline, which dictates the method for assigning a "career offender's" criminal history category and offense level.(38) Specifically, the Guideline instructs the sentencing judge to assign a career offender a criminal history category of VI (the highest level), and to identify the offender's "offense statutory maximum" in order to set his offense level.(39) The judge then consults the sentencing table to determine the applicable range.(40)

    3. SENTENCING GUIDELINES, POLICY STATEMENTS, AND COMMENTARY

      The Guidelines Manual consists of three kinds of text: guidelines; policy statements; and commentary.(41)

  3. Guidelines

    As noted previously, guidelines direct the sentencing court as to the appropriate type of punishment and length of sentence to impose in a federal criminal case.(42) Guidelines are constitutional under Mistretta v. United States.(43)

    The Sentencing Commission's promulgation of guidelines is equivalent to an administrative agency's promulgation of "legislative rules."(44) That is, guidelines are the product of an "express congressional delegation of authority for rulemaking,"(45) and represent the Commission's interpretation of the federal statute it administers (the Sentencing Reform Act).(46) Additionally, Congress subjects both guidelines and legislative rules to review and scrutiny prior to their becoming law.(47) Similar to legislative rules, Congress subjects guidelines to the "notice and comment" provisions of the Administrative Procedure Act.(48) "Notice and comment" requires the promulgating agency to give public notice of its proposed rulemaking and allow for public comment.(49) If the agency decides to promulgate the rules after receiving the comments, it must set forth the rule's basis and purpose in a public statement.(50) To further assure accountability, Congress requires the Sentencing Commission to submit proposed guidelines (and amendments), accompanied by explanatory statements, to Congress itself.(51) The guidelines automatically take effect 180 days after submission, unless Congress modifies or disapproves them.(52)

    Given these similarities, the Supreme Court has extended the two-part standard governing the degree of judicial deference owed to legislative rules, to guidelines.(53) Under this standard, guidelines are binding on judges if (1) the congressional authorizing statute is "silent or ambiguous" on the pertinent issue, and (2) the Commission's interpretation is based on a permissible construction of the statute.(54)

    1. Policy Statements

      In addition to guidelines, the Sentencing Reform Act directs the Commission to adopt "general policy statements regarding application of the guidelines or any other aspect of sentencing... [that] would further the purposes" of the Act.(55) Policy statements are binding on federal judges,(56) and amendments thereof are not subject to congressional review.(57)

    2. Commentary

      Within the Guidelines Manual, both guidelines and policy statements are accompanied by extensive commentary.(58) Although the Sentencing Reform Act does not expressly authorize the issuance of commentary,(59) it refers to it,(60) and the Supreme Court has endorsed its use in interpreting the guidelines.(61) The Commission has established that commentary may serve three functions: (1) to "interpret the guideline or explain how it is to be applied;" (2) to "suggest circumstances which . . . may warrant departure from the guidelines;" and (3) to "provide background information, including factors considered in promulgating the guideline or reasons underlying promulgation of the guideline."(62)

      In Stinson v. United States, the Court concluded that commentary is the equivalent of an "interpretive rule," i.e., an agency's interpretation of its own legislative rule.(63) The Court reasoned as follows: Given that guidelines are the equivalent of legislative rules adopted by agencies, and the functional purpose of commentary is to "assist in the interpretation and application" of guidelines, "commentary is akin to an agency's interpretation of its own legislative rules."(64) Consequently, the Court extended the standard of judicial deference owed to interpretive rules to commentary, holding that commentary that "interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of that guideline."(65)

      At issue in Stinson was the Commission's interpretation of "crime of violence" in the Career Offender Guideline. As noted, Congress directed the Commission to assure that the Guidelines specified...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT