AuthorActon, John S.


The Sentencing Reform Act of 19841 created the United States Sentencing Commission as "an independent commission in the judicial branch of the United States." (2) Among its other responsibilities, the Commission authors the United States Sentencing Guidelines. The Guidelines help federal judges determine the length of criminal sentences for federal crimes. (3) Based on factors such as the nature of a crime and a defendant's criminal history, the Guidelines suggest a range of potential sentences within which the defendant's sentence should presumptively fall. Until the early 2000s, the Guidelines range was treated as mandatory and binding on federal judges. But in United States v. Booker, (4) the Supreme Court determined that binding sentencing guidelines were unconstitutional and purported to excise the portions of the Sentencing Act that made the Guidelines range mandatory. (5) However, even in their advisory form, the Sentencing Guidelines remain an extremely important part of the federal sentencing process. Courts are required to begin sentencing by correctly calculating the range of potential sentences suggested by the Guidelines, and failure to calculate the correct range constitutes procedural error. (6) And while courts may--based on the totality of circumstances--give a sentence outside of the correct guidelines range, courts must always explain the length of their sentences and are expected to give "more significant justification[s]" for significant departures from the guideline range. (7) Even after Booker, the Supreme Court has referred to the Guidelines as "the lodestone of sentencing," (8) and nearly three-quarters of all federal sentences either fall within the Guidelines' range or depart from the range in a manner justified by the Guidelines Manual. (9)

Amendments to the Guidelines thus significantly impact the length of criminal sentences. In order to amend the Guidelines, the Commission goes through a multi-step process. First, before proposing any changes to the Guidelines, the Commission consults with "authorities on ... various aspects of the Federal criminal judicial system" including the Judicial Conference of the United States, the Criminal Division of the Department of Justice, and the Federal Public Defenders. (10) Then, the Commission follows the Administrative Procedure Act's notice and comment rulemaking procedures. (11) Finally, the Commission submits any proposed amendments to Congress between the "beginning of a regular [congressional] session" and "the first day of May." (12) The amendments may not go into effect for at least 180 days, giving Congress the opportunity to pass new legislation to stop the amendments. (13) The Sentencing Commission also authors policy statements (a process that is explicitly authorized by statute) and commentary to the Guidelines (a process that is not explicitly authorized by statute). (14) The commentary is varyingly stylized as application notes, background information, introductions, and conclusions. (15) The Sentencing Commission has explicitly reserved the right to adopt new commentary without notice and comment and without submitting the proposed changes in commentary to Congress. (16)

Some commentary provides straightforward interpretations of the underlying guidelines, while other commentary serves a more complicated role. (17) Consider, for instance, the frequently litigated Application Note 1 to Section 4B1.2 of the Guidelines. Section 4B1.2 of the Guidelines is the definitions section for Section 4B1.1 of the Guidelines. (18) Section 4B1.1 provides a sentencing enhancement for "career offenders" based on the defendant's criminal history. (19) Application Note 1 to Section 4B1.2 of the Guidelines is effectively a definitions section on top of a definitions section, clarifying and elaborating upon Section 4B1.2's definitions. (20) While controversial, this Application Note is relatively straightforward commentary in the sense that it is a series of one-to-three-sentence definitions that explain what the Sentencing Commission believes specific phrases in Sections 4B1.1 and 4B1.2 mean. (21)

In contrast, Application Note 3 to Section 2B1.1 of the Guidelines is only interpretive in the loosest sense of the term. Section 2B1.1 of the Guidelines determines the appropriate range of sentences for various economic crimes in part based on the "loss" that the crime caused. (22) Application Note 3 to Section 2B1.1 of the Guidelines is a seventeen-page-long "interpretation" of the word "loss" that is itself a complex scheme instructing courts to calculate loss differently for different types of crimes. (23) Application Note 3 may be intended to clarify the meaning of "loss," but it is filled with its own ambiguities that have divided lower courts. (24)

Still other commentary does not purport to interpret the Guidelines at all. For example, Application Note 1 to Section 2A1.2 of the Guidelines tells judges when not to follow the guidelines range. Section 2A1.2 unambiguously provides the baseline sentencing level for second degree murder, (25) but Application Note 1 instructs judges that an upward departure from that baseline may be appropriate if the murder was particularly heinous. (26)

In any of these cases, whether and how the judge consults the commentary could impact the sentence ultimately given to the defendant. This gives substantial significance to the following question: When a court interprets the Guidelines, how much weight should it give to the Commission's commentary?

In 1993, a unanimous Supreme Court answered this question in Stinson v. United States. (27) The Court held that "commentary in the Guidelines Manual 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." (28) It reasoned that the commentary should be "treated as an agency's interpretation of its own legislative rule" while acknowledging that "the analogy is not precise because Congress has a role in promulgating the guidelines." (29) The Court quoted Bowles v. Seminole Rock & Sand Co., (30) explaining that "[a]s we have often stated, provided an agency's interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given 'controlling weight unless it is plainly erroneous or inconsistent with the regulation.'" (31) The Court further determined that the commentary on the specific guidelines relevant to Stinson's case was "a binding interpretation of the" Guidelines. (32) Beyond this lone quote analogizing to Seminole Rock, the Court did not explain how lower courts should reconcile judicial deference to the Sentencing Guidelines commentary with Seminole Rock deference. (33)

In recent years, four discrete issues have complicated questions over Stinson deference's scope. First, jurisprudential developments have undermined Stinson's reasoning. The Court's doctrinal evolutions, the Sentencing Commission's self-imposed procedures for amending commentary, and congressional enactments have made the Stinson Court's description of the Guidelines and their relationship to legislative rules inaccurate. Second, some circuit courts have argued that Stinson has been illegitimately used to justify commentary that expands the scope of the Sentencing Guideline's text. These courts have primarily advanced these arguments in cases about the application notes to United States Sentencing Guidelines Sections 4B1.1 and 4B1.2, and a circuit split has arisen over these provisions. Third, after the Supreme Court's holding in Kisor v. Wilkie clarified the level of deference due to administrative agencies' interpretations of their own regulations, lower courts have disagreed over whether Kisor's limitations on judicial deference applied to the Sentencing Commission's commentary. This has exacerbated the pre-existing divides over Stinson deference. Lower courts now not only disagree about how broadly Stinson should be read on its on its own terms, but also over whether a set of preconditions for applying Stinson deference exists at all. Fourth, some lower court judges have called for limits to deference doctrines in the criminal context, arguing that any doctrine that requires deference to the government in cases that impact individual liberty violates the rule of lenity. This debate has largely centered on Chevron deference, but it has clear implications for Stinson deference as well.

These issues raise distinct questions for lower court judges and for the Supreme Court that, this Note argues, require different answers. Part I provides general background. It explains how Stinson's characterizations of the Guidelines and commentary amendment process are outdated and how some courts mischaracterize the contemporary procedures. Part II provides more specific background on the pre-Kisor disagreements over Stinson's scope that created a circuit split over whether courts should follow Application Note 1 to Section 4B1.2 of the Guidelines. Parts III and IV address how lower court judges and the Supreme Court, respectively, should treat Stinson and Kisor. Part III argues that lower federal courts bound by vertical stare decisis must continue to take a deferential approach to the commentary under Stinson without first considering the preconditions for Seminole Rock deference articulated in Kisor. Part IV, however, argues that Supreme Court should eliminate Stinson deference when presented with an appropriate case. It maintains that the case for stare decisis for Stinson deference is relatively weak. It further argues that principles of lenity and relatively weak policy justifications for deference to the commentary counsel against Stinson.


    Stinson's reasoning is as follows: The Sentencing Commission authors both the Sentencing Guidelines and...

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