{"id":4773,"date":"2026-06-07T21:41:30","date_gmt":"2026-06-08T01:41:30","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jol\/?p=4773"},"modified":"2026-06-07T23:39:16","modified_gmt":"2026-06-08T03:39:16","slug":"deference-versus-departure-the-unique-question-of-deference-to-the-united-states-sentencing-guidelines-commentary","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jol\/2026\/06\/07\/deference-versus-departure-the-unique-question-of-deference-to-the-united-states-sentencing-guidelines-commentary\/","title":{"rendered":"Deference Versus Departure: The Unique Question of Deference to the United States Sentencing Guidelines Commentary"},"content":{"rendered":"

Nathalie Beauchamps[*]<\/a><\/span><\/strong><\/p>\n

Abstract<\/span><\/h4>\n

The United States Sentencing Commission is a unique institution within the structure of Government: it is a multi-member body housed within the judicial branch with the responsibility to promulgate Sentencing Guidelines that assist judges in making federal criminal sentencing decisions. Shortly after the Commission was created, the Supreme Court held in <\/em>Stinson v. United States that<\/em> the<\/em> Commission\u2019s <\/em>commentary accompanying the Guidelines are authoritative sources for interpreting the Guidelines. In so doing, the Court borrowed from a deference doctrine in administrative law that was reserved for agency interpretations of their regulations. However, in <\/em>Kisor v. Wilkie, the Supreme Court cabined the deference doctrine that <\/em>Stinson relied on. Hence, there is an open question regarding whether the Guidelines commentary can or should still be authoritative sources of interpretation for the Sentencing Guidelines. To make things more complicated, the Supreme Court held in <\/em>United States v. Booker that the Guidelines could no longer bind federal judges in their sentencing decisions. In light of this and the Commission\u2019s distinctive policy mandates and operational features, this Note argues that the Supreme Court should reaffirm <\/em>Stinson on renewed grounds. While it is true that the landscape of deference to administrative agencies has changed considerably in recent years, a rote transfer of these shifting decisional rules to the federal sentencing scheme is inappropriate. Careful consideration of the matter demonstrates that the federal sentencing scheme operates better when judges respect the Commission\u2019s discretion to interpret its own Guidelines and meaningfully exercise their right to depart from those Guidelines they deem unjustified.<\/em><\/p>\n

I. Introduction<\/span><\/h4>\n

The task of criminal sentencing is far from straightforward. This is true even decades after the formation of the United States Sentencing Commission (the \u201cCommission\u201d), an independent agency created by Congress to increase the \u201ccertainty and fairness\u201d of criminal sentencing.1<\/a><\/sup>U.S. SENT\u2019G COMM\u2019N, GUIDELINES MANUAL, ch.1, pt.A, at 2 (Nov. 2025). Hereinafter referred to as \u201cU.S.S.G.\u201d; 28 U.S.C. \u00a7 991(b)(1).<\/span> Take, for example, United States v. Chandler<\/em>.2<\/a><\/sup>United States v. Chandler, 104 F.4th 445 (3d Cir. 2024).<\/span> In this case, the Third Circuit upheld a district court\u2019s application of a sentencing enhancement recommended by the United States Sentencing Guidelines (the \u201cGuidelines\u201d). Defendant-Appellant James Chandler had twice robbed on-duty United States postal employees and used a replica gun to scare his victims.3<\/a><\/sup>See Chandler<\/em>, 104 F.4th at 448.<\/span> Chandler pled guilty to his charges after which a sentencing judge enhanced his sentence pursuant to \u00a7 2A4.1(b)(3) and \u00a7 2B3.1(b)(2)(D) of the Guidelines for use of a \u201cdangerous weapon\u201d during the commission of his crimes.4<\/a><\/sup>Id<\/em>. at 449.<\/span> The commentary to the relevant Guidelines provides that a \u201cdangerous weapon\u201d includes an object that \u201cclosely resembles\u201d an \u201cinstrument capable of inflicting death or serious bodily injury[.]\u201d5<\/a><\/sup>Id. <\/em>(quoting U.S.S.G. \u00a7 1B1.1). <\/span><\/p>\n

On appeal, the Third Circuit affirmed Chandler\u2019s sentence.6<\/a><\/sup>See id.<\/em> at 448.<\/span> In so doing, it applied Kisor v. Wilkie<\/em>,7<\/a><\/sup>Kisor v. Wilkie, 588 U.S. 558 (2019).<\/span> in which the Supreme Court held that courts must defer to agency interpretations of their regulations only if the text of the regulation is \u201c\u2018genuinely ambiguous.\u2019\u201d8<\/a><\/sup>Chandler<\/em>, 104 F.4th at 450 (quoting Kisor<\/em>, 588 U.S. at 573).<\/span> The Chandler <\/em>court found that the term \u201cdangerous weapon\u201d was genuinely ambiguous, but that accompanying commentary was a reasonable interpretation of the Guidelines.9<\/a><\/sup>See id.<\/em> at 454\u201355.<\/span> Thus, it gave the commentary controlling weight.10<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Judge Bibas dissented, arguing that because the text of the Guidelines was ambiguous, the court should have applied the rule of lenity.11<\/a><\/sup>See id.<\/em> at 465 (Bibas, J., dissenting).<\/span> Judge Bibas argued that lenity, as a tool of statutory interpretation, \u201ccome[s] before deference.\u201d12<\/a><\/sup>Id.<\/em> <\/span> In a subsequent dissent to the Third Circuit\u2019s denial of Chandler\u2019s petition for rehearing, he argued that \u201clenity prevents agencies from using delegated power to expand criminal liability without going through proper lawmaking processes.\u201d13<\/a><\/sup>Id.<\/em> at 241.<\/span> The specific commentary at issue expanded criminal liability for defendants who used replica guns during certain crimes. Thus, the court should have declined to apply it.<\/p>\n

The tension between deference to the Guidelines commentary and lenity as exemplified by Chandler<\/em> obfuscates the \u201ccertainty and fairness\u201d14<\/a><\/sup>U.S.S.G. \u00a7 1A2.<\/span> of federal criminal sentencing which the Guidelines were meant to enable. Central to this tension is a question of how much deference courts ultimately owe to the Guidelines commentary. The current state of the law, however, does not provide a clear answer.15<\/a><\/sup>See infra<\/em> Part II.<\/span> Before the Supreme Court decided Kisor<\/em>, Stinson v. United States16<\/a><\/sup><\/em>Stinson v. United States, 508 U.S. 36 (1993).<\/span><\/em> directly addressed the question of deference to Guidelines commentary. Decided in 1993, Stinson<\/em> held that the commentary to the Guidelines are \u201cauthoritative.\u201d17<\/a><\/sup>Id.<\/em> at 38.<\/span> By analogizing Guidelines commentary to agency interpretations of their regulations,18<\/a><\/sup>See<\/em> id.<\/em> at 44. <\/span> the Stinson <\/em>Court adopted the pre-Kisor<\/em> deference framework established in Bowles v. Seminole Rock & Sand Co.<\/em>,19<\/a><\/sup>Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 461 (1945).<\/span> now referred to as Auer <\/em>deference.20<\/a><\/sup>The framework established in Seminole Rock <\/em>eventually matured to what is known as Auer<\/em> deference after the Supreme Court reaffirmed its Seminole Rock<\/em> holding into a formal rule in Auer v. Robbins, 519 U.S. 452 (1997). <\/span> Auer <\/em>deference instructed courts to give authoritative weight to agency interpretations of agency regulations so long as they were not \u201cplainly erroneous or inconsistent with the regulation[s].\u201d21<\/a><\/sup>Seminole Rock<\/em>, 325 U.S. at 414.<\/span> Thus, unlike other deference doctrines like Chevron<\/em>, courts had no discretion to evaluate if agency interpretations were reasonable.22<\/a><\/sup>But see <\/em>Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 845 (1984), overruled by<\/em>, Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).<\/span> But in 2019, the Supreme Court changed course and adopted a less deferential test for agency interpretations of their own rules in Kisor<\/em>.23<\/a><\/sup>Kisor v. Wilkie, 588 U.S. 558, 573 (2019).<\/span> Having not written a word about Stinson<\/em> in its opinion, the Kisor<\/em> Court left no guidance to lower courts regarding whether the guardrails it had set around Seminole Rock<\/em>\/Auer<\/em> deference also should apply to Stinson<\/em> deference.24<\/a><\/sup>See id.<\/em><\/span> This uncertainty surrounding the precedential weight of Stinson<\/em> versus Kisor<\/em> has divided the circuit courts which now vigorously disagree on when and how to defer to the Guidelines commentary.25<\/a><\/sup>See, e.g.<\/em>, United States v. Lewis, 963 F.3d 16, 24\u201325 (1st Cir. 2020); United States v. Rainford, 110 F.4th 455, 475\u201376 n.5 (2d Cir. 2024); United States v. Nasir, 17 F.4th 459, 472 (3d Cir. 2021) (en banc); United States v. Moses, 23 F.4th 347, 357 (4th Cir. 2022); United States v. Campbell, 22 F.4th 438, 444 (4th Cir. 2022); United States v. Vargas, 74 F.4th 673, 698 (5th Cir. 2023) (en banc), cert. denied<\/em>, 144 S. Ct. 828 (2024); United States v. Riccardi, 989 F.3d 476, 484\u201385 (6th Cir. 2021); United States v. Smith, 989 F.3d 575, 584\u201386 (7th Cir. 2021); United States v. Rivera, 76 F.4th 1085, 1090\u201391 (8th Cir. 2023); United States v. Castillo, 69 F.4th 648, 664 (9th Cir. 2023); United States v. Maloid, 71 F.4th 795, 805 (10th Cir. 2023); United States v. Dupree, 57 F.4th 1269, 1279 (11th Cir. 2023); United States v. Jenkins, 50 F.4th 1185, 1197 (D.C. Cir. 2022).<\/span><\/p>\n

Complicating the question of whether Stinson<\/em> deference or Kisor <\/em>deference is more appropriate for the Guidelines commentary is the fact that the Supreme Court held the Guidelines are advisory in United States v. Booker<\/em>,26<\/a><\/sup>United States v. Booker, 543 U.S. 220, 245 (2005).<\/span> meaning that courts are not bound by Guidelines ranges when sentencing defendants. Thus, even if the interpretation of a Guideline put forth in the commentary would add time to an offender\u2019s sentence, a judge has the discretion to depart from the Guideline as interpreted by its commentary.<\/p>\n

In light of these tensions in the law and the central role the Guidelines play in federal criminal sentencing, a discussion centering the importance of deference to the Guidelines commentary is important. Although deference doctrines are increasingly disfavored in administrative law,27<\/a><\/sup>See Loper Bright<\/em>, 603 U.S. at 385 (asserting that the \u201cfinal \u2018interpretation of the laws\u2019 [is] \u2018the proper and peculiar province of the courts.\u2019\u201d) (quoting The Federalist No. 78, at 525 (A. Hamilton)).<\/span> Stinson<\/em> stands in sharp contrast to the current trend and has not yet been overruled. The Commission, however, is a sui generis <\/em>organization within the administrative state.28<\/a><\/sup>See infra<\/em> Part IV.<\/span> Thus, any path forward towards devising a proper deference framework for the Guidelines commentary must center the unique policy goals underlying the formation of the Commission.29<\/a><\/sup>See supra <\/em>Part II.A.<\/span><\/p>\n

This Note argues that a reflexive deference framework with a corresponding heightened use of voluntary departures from the Guidelines is preferable in the Sentencing Commission context for several reasons. For one, this approach is more consistent with the Commission\u2019s policy mandates, especially its responsibility to dynamically communicate with the courts to update the Guidelines.30<\/a><\/sup>See <\/em>28 U.S.C. \u00a7 994(o) (mandating that the Commission \u201cperiodically\u201d \u201creview and revise, in consideration of comments and data coming to its attention, the guidelines\u201d).<\/span> Additionally, the advisory nature of the Guidelines combats the negative implications of reflexive deference. Finally, preserving the reflexive deference framework from Stinson<\/em> better preserves the principle of stare decisis<\/em>.<\/p>\n

This Note proceeds in five parts. Part I provides a background of the Commission. Part II discusses the tension between Stinson<\/em> and Kisor<\/em>. Part III discusses the circuit split resulting from Kisor<\/em> regarding its impact on deference to the Guidelines commentary. Part IV argues that the Supreme Court should reaffirm Stinson <\/em>on renewed grounds and explains why a reflexive framework is appropriate in the Sentencing Guidelines context. Part V responds to counterarguments.<\/p>\n

II. Background<\/span><\/h4>\n
A. The United States Sentencing Commission<\/em><\/strong><\/h5>\n
1. The Original Purposes of the Commission<\/em><\/h6>\n

This Note assumes the reader\u2019s familiarity with the Sentencing Guidelines; however, emphasizing several aspects of the Guidelines\u2019 purposes and operation will support this Note\u2019s central thesis. Before Congress enacted the Sentencing Reform Act of 1984 (\u201cSRA\u201d), federal judges had complete discretion over the criminal sentences defendants received. The result was a federal criminal sentencing regime riddled with arbitrary\u2014and racially problematic\u2014disparities, reflecting the unfortunate reality that \u201cthe personality of a judge mattered in a criminal case.\u201d31<\/a><\/sup>See <\/em>Stephen Breyer, Federal Sentencing Guidelines Revisited<\/em>, 36 FED. SENT\u2019G REP. 244, 244 (2024).<\/span> Not only was there a significant disparity in the sentences imposed by federal judges for similar offenses, but these disparities often turned on the gender, race, or sentencing jurisdiction of the defendants.32<\/a><\/sup>See id<\/em>.<\/span><\/p>\n

To address these concerns, Congress established the United States Sentencing Commission through the SRA as an independent agency within the judicial branch.33<\/a><\/sup>Organization<\/em>, UNITED STATES SENT\u2019G COMM\u2019N., https:\/\/www.ussc.gov\/about\/who-we-are\/organization#:~:text=The%20U.S.%20Sentencing%20Commission%20is,serve%20staggered%20six%2Dyear%20terms [https:\/\/perma.cc\/26RJ-2QR6]. <\/span> The Commission was charged with \u201cestablish[ing] sentencing policies and practices for the [f]ederal criminal justice system.\u201d34<\/a><\/sup>28 U.S.C. \u00a7 991(b)(1).<\/span> Specifically, Congress set out three central functions for the Commission: (1) create a federal criminal sentencing scheme that takes into account the core goals of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation; (2) increase the certainty and fairness in sentencing by limiting disparity in sentencing; and (3) create an evolving sentencing scheme that the Commission continuously modifies based on its ongoing research.35<\/a><\/sup>See <\/em>U.S.S.G. \u00a7\u00a7 1A1.2, 1A1.3; 28 U.S.C. \u00a7\u00a7 994(c), 994(f); 28 U.S.C. \u00a7 991(b)(1).<\/span><\/p>\n

In designing a sentencing regime that could achieve all these functions, the Commission balanced uniformity\u2014the principle that like crimes receive like punishments\u2014with proportionality\u2014the principle that the punishment should fairly fit the actual circumstances of the crime.36<\/a><\/sup>See<\/em> Breyer, supra<\/em> note 31, at 249\u201350.<\/span> In striking the right balance, the Commission decided against a major rehaul of the federal criminal sentencing scheme. Specifically, the Commission took an empirical approach using actual sentencing data as a baseline for its initial set of Guidelines37<\/a><\/sup>See <\/em>U.S.S.G. \u00a7 1A1.3.<\/span> and devising an initial list of \u201crelevant distinctions\u201d for criminal punishment.38<\/a><\/sup>Id.<\/em> <\/span><\/p>\n

Also important among the Commission\u2019s original functions is to promulgate Guidelines that dynamically evolve over time based on the actual behavior of sentencing courts.39<\/a><\/sup>See <\/em>U.S.S.G. \u00a7 1A2 (describing the Guidelines as \u201cevolutionary in nature\u201d). Moreover, \u201c[a]s envisioned by Congress, implemented by the Commission, and reaffirmed by the Supreme Court, the guidelines are the product of a deliberative and dynamic process that seeks to embody within federal sentencing policy the purposes of sentencing set forth in the [SRA].\u201d Id.<\/em> <\/span> Congress tasked the Commission with \u201congoing responsibilities\u201d to oversee the operation of the Guidelines, recommend to Congress modifications to criminal statutes, and create research and education programs related to its work.40<\/a><\/sup>Id.<\/em> <\/span> Specifically, the SRA instructs the Commission to periodically review and revise the Guidelines based on comments it receives from courts, lawyers, the Department of Justice, and the Bureau of Prisons as well as criminal sentencing data.41<\/a><\/sup>Id.<\/em>; 28 U.S.C. \u00a7\u00a7 994(o), (w).<\/span> Thus, central to the Commission\u2019s original mandate is to promulgate policy directives responsive to the input of key actors in the federal sentencing scheme, especially courts.<\/p>\n

Originally, the Guidelines were understood to be mandatory.42<\/a><\/sup>See <\/em>Mistretta v. United States, 488 U.S. 361, 367 (1989) (discussing how Congress \u201csettl[ed] on a mandatory-guideline system,\u201d by enacting the SRA).<\/span> Judges were not to depart from the sentencing ranges recommended by the Guidelines unless it was for an enumerated reason specifically approved by the Commission,43<\/a><\/sup>For example, the Commission specifically permitted downward departures for defendants that provided substantial assistance to authorities and upward departures for defendants that caused a threat to national security. See <\/em>U.S. SENT\u2019G COMM\u2019N, GUIDELINES MANUAL \u00a7\u00a7 8C4.1, 8C4.3 (Nov. 2004).<\/span> or \u201cthere exist[ed] 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 that should result in a sentence different from that described.\u201d44<\/a><\/sup>18 U.S.C.A. \u00a7 3553(b), invalidated by <\/em>United States v. Booker, 543 U.S. 220, 245 (2005); see also <\/em>Brent E. Newton & Dawinder S. Sidhu, The History of the Original United States Sentencing Commission, 1985\u20131987<\/em>, 45 HOFSTRA L. REV. 1167, 1185 (2017).<\/span> However, given the Commission\u2019s policy mandate to periodically review and revise the Guidelines, the Guidelines were still to operate dynamically and evolve over time by responding to the behavior of sentencing courts.45<\/a><\/sup>See <\/em>U.S.S.G. \u00a7 1A2.<\/span> Thus, courts had considerable discretion in finding factors not adequately taken into consideration by the Commission. The Commission itself instructed courts \u201cto treat each guideline as carving out a \u2018heartland,\u2019 a set of typical cases embodying the conduct that each guideline describe[d].\u201d46<\/a><\/sup>U.S. SENT\u2019G COMM\u2019N, GUIDELINES MANUAL, ch.1, pt.A, at 5 (Nov. 1995).<\/span> However, \u201c[w]hen a court [found] an atypical case . . . where [a defendant\u2019s] conduct significantly differ[ed] from the norm, the court [could] consider whether a departure [was] warranted.\u201d47<\/a><\/sup>Id.<\/em><\/span> For example, a court could depart downward based on a finding that the notoriety of a case created a particularly high risk that a defendant would be a target of abuse in prison.48<\/a><\/sup>See <\/em>Koon v. United States, 518 U.S. 81, 89 (1996).<\/span> Thus, while the Guidelines were mandatory, they were not designed to be rigid.<\/p>\n

2. The Role of the Guidelines Post-<\/em>Booker<\/h6>\n

The Supreme Court fundamentally changed the operational relationship between the Guidelines and federal courts through a series of cases starting with United States v. Booker<\/em>. This rendered the Guidelines advisory rather than mandatory.49<\/a><\/sup>See Booker<\/em>, 543 U.S. at 246; see also <\/em>18 U.S.C. \u00a7\u00a7 3553(b)(1), 3742(e) (both struck from the SRA in Booker<\/em>).<\/span> In Booker<\/em>, the Court held that the Guidelines\u2019 mandatory nature violated the Sixth Amendment right to trial by jury by encroaching on the ability of judges to impose sentences based on jury fact-finding.50<\/a><\/sup>See Booker<\/em>, 543 U.S. at 250.<\/span> Thus, the Booker<\/em> Court severed the SRA\u2019s unconstitutional provisions, which had two direct consequences: first, while judges must still consider Guidelines-calculated sentence ranges,51<\/a><\/sup>See <\/em>18 U.S.C. \u00a7 3553(a).<\/span> they must no longer adhere to them and, second, appellate courts are to review departures from the Guidelines for unreasonableness rather than de novo.52<\/a><\/sup>See Booker<\/em>, 543 U.S. at 261.<\/span><\/p>\n

The Supreme Court in Kimbrough v. United States<\/em>53<\/a><\/sup>Kimbrough v. United States, 552 U.S. 85 (2007).<\/span> and Gall v. United States<\/em>54<\/a><\/sup>Gall v. United States, 552 U.S. 38 (2007).<\/span> went further in increasing sentencing courts\u2019 discretion. In Kimbrough<\/em>, the Court affirmed that courts are free to depart from the Guidelines based on policy disagreements with them.55<\/a><\/sup>See Kimbrough<\/em>, 552 U.S. at 91, 101. <\/span> Additionally, in Gall<\/em>, the Court held that there need not be any \u201c\u2018extraordinary\u2019\u201d circumstances for a federal judge to depart from the Guidelines as some appellate courts had previously found, because such a requirement would be inconsistent with the reasonableness standard of review established in Booker<\/em>.56<\/a><\/sup>See Gall<\/em>, 552 U.S. at 38.<\/span><\/p>\n

While these cases collectively give federal judges far more discretion in federal criminal sentencing than they had pre-Booker<\/em>, judges still face some restraints under the SRA that limit their discretion. For one, judges must still consider the sentencing objectives set out in 18 U.S.C. \u00a7 3553(a)57<\/a><\/sup>These include (1) \u201cthe nature and circumstances of the offense and the history and characteristics of the defendant\u201d; (2) \u201cthe need for the sentence imposed\u201d; (3) \u201cthe kinds of sentences available\u201d; (4) \u201cthe kinds of sentence and the sentencing range established for\u201d (a) \u201cthe applicable category of offense committed by the applicable category of defendant as set forth in the guidelines\u201d and (b) \u201cin the case of a violation of probation or supervised release, the applicable guidelines or policy statements . . . \u201d; (5) \u201cany pertinent policy statement\u201d; (6) \u201cthe need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct\u201d; and (7) \u201cthe need to provide restitution to any victims of the offense.\u201d 18 U.S.C. \u00a7 3553(a).<\/span> and properly calculate sentencing ranges using the Guidelines before sentencing defendants.58<\/a><\/sup>See Booker<\/em>, 543 U.S. at 264; Gall<\/em>, 552 U.S. at 49; Rita v. United States, 551 U.S. 338, 351 (2007).<\/span> Even if a court ultimately decides to depart from the Guidelines, the Guidelines must serve as \u201cthe starting point and initial benchmark\u201d of any sentencing decision.59<\/a><\/sup>Gall<\/em>, 552 U.S. at 51.<\/span> Additionally, on review, an appellate court must first determine whether there was no \u201csignificant procedural error\u201d in a district court\u2019s calculation of the applicable Guidelines range,60<\/a><\/sup>Id.<\/em><\/span> which can be grounds for prejudicial error.61<\/a><\/sup>See <\/em>Molina-Martinez v. United States, 578 U.S. 189, 198 (2016).<\/span> Second, an appellate court must consider the \u201csubstantive reasonableness\u201d of a sentence under an abuse-of-discretion standard.62<\/a><\/sup>Gall<\/em>, 552 U.S. at 51.<\/em><\/span><\/p>\n

The Commission\u2019s core functions also remain the same post-Booker<\/em>. For one, the Guidelines are still the product of a \u201cdeliberative and dynamic process\u201d that seeks to accomplish the purposes of criminal sentencing.63<\/a><\/sup>U.S.S.G. \u00a7 1A2.<\/span> Just as the Commission must consider the purposes of criminal sentencing when promulgating the Guidelines, courts must consider these same purposes, set out in 18 U.S.C. \u00a7 3553, within every sentencing decision.64<\/a><\/sup>See <\/em>Rita v. United States, 551 U.S. 338, 347 (2007).<\/span> Secondly, even though the Guidelines are advisory, they still \u201ccontinue to move sentencing in Congress\u2019 preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary.\u201d65<\/a><\/sup>United States v. Booker, 543 U.S. 220, 311 (2005) (Scalia, J., dissenting in part).<\/span> Courts must calculate the Guidelines at the beginning of each sentencing decision and are evaluated on appeal for the correctness of such calculations.66<\/a><\/sup>See Gall<\/em>, 552 U.S. at 49, 51.<\/span> Thus, the Guidelines serve as a useful starting point to federal criminal sentences that, without such a benchmark, would reflect unwarranted disparity.67<\/a><\/sup>See <\/em>Peugh v. United States, 569 U.S. 530, 535 (2013) (finding that sentences anchored by the Guidelines promotes uniformity).<\/span><\/p>\n

Thus, the important role played by the Guidelines both before and after Booker<\/em> demonstrates the continuing relevance of determining the proper level of deference that courts should grant to the Guidelines commentary.<\/p>\n

III. The Tension Between\u00a0Stinson\u00a0<\/em>and\u00a0Kisor<\/em><\/span><\/h4>\n

This Note is inspired by the seemingly irreconcilable tension between Stinson<\/em> and Kisor<\/em> and the broader discussion about deference to the Guidelines commentary that ensued. Oddly, as the deference debate percolated among the federal circuit courts, it largely failed to account for the advisory nature of the Guidelines post-Booker<\/em>. In 1993, the Supreme Court established a highly deferential framework for the Guidelines commentary which mirrored the deference framework that already existed for agency interpretations of their own regulations. However, in 2019, the Supreme Court refined the deference framework applicable to agency interpretations of their own regulations without clarifying whether it also modified deference to the Guidelines commentary. To this day, these two decisions exist as conflicting sources of precedent for courts interpreting the Guidelines commentary.<\/p>\n

A.<\/em> Stinson v. United States<\/strong><\/h5>\n

In Stinson v. United States<\/em>, the Supreme Court held that interpretive or explanatory Guidelines commentary is binding on judges unless the commentary \u201cviolates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that [G]uideline.\u201d68<\/a><\/sup>Stinson v. United States, 508 U.S. 36, 38 (1993).<\/span> The Court did not create an entirely new standard of deference for the Guidelines commentary; rather, it adapted the pre-existing Seminole Rock <\/em>(now Auer<\/em>) deference framework for agencies\u2019 interpretations of their own legislative rules.<\/em>69<\/a><\/sup>See id.<\/em> at 45. Auer<\/em> was not decided until after the Supreme Court decided Stinson<\/em>, which is why the Stinson<\/em> Court only refers to Seminole Rock<\/em> in its analogical analysis. <\/span> Auer<\/em> deference called for courts to give authoritative weight to agency interpretations of their own rules unless they were \u201cplainly erroneous or inconsistent\u201d with the Guidelines.70<\/a><\/sup>Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 461 (1945).<\/span> The Stinson<\/em> Court drew an analogy between the Guidelines commentary and agency interpretations of legislative rules.71<\/a><\/sup>Stinson<\/em>, 508 U.S. at 44.<\/span> Just as interpretive rules \u201cassist in the interpretation and application\u201d of legislative rules, so do the Guidelines commentary with respect to the Guidelines.72<\/a><\/sup>Id.<\/em> The Stinson<\/em> Court also analogized the Guidelines themselves to legislative rules, referring back to a previous decision, Mistretta v. United States, 488 U.S. 361, 371\u201379 (1989), which confirmed the Commission\u2019s delegated authority to promulgate authoritative and binding Guidelines through the informal rulemaking procedures set out in 5 U.S.C. \u00a7 553. See Stinson<\/em>, 503 U.S. at 44.<\/span> While this analogy was \u201cnot precise,\u201d because Congress plays a unique role in promulgating the Guidelines,73<\/a><\/sup>Guidelines, like legislative rules, are subject to the notice and comment procedures set out in the Administrative Procedure Act. See <\/em>5 U.S.C. \u00a7 553; 28 U.S.C. \u00a7 994(x). They must also, however, be submitted to Congress for approval per 28 U.S.C. \u00a7 994(p). See supra <\/em>Part II.A. This was not yet the established practice for most administrative rules at the time Stinson<\/em> was decided because Congress had not yet promulgated the Congressional Review Act. See <\/em>5 U.S.C. \u00a7\u00a7 801\u2013808.<\/span> the Court found that the Commission ultimately has the \u201cfirst responsibility\u201d to assist in the interpretation of the Guidelines which are \u201cwithin the Commission\u2019s particular area of concern and expertise.\u201d74<\/a><\/sup>Stinson<\/em>, 508 U.S. at 44.<\/span><\/p>\n

The deference framework resulting from Stinson<\/em> is highly deferential. Not only are courts to defer to commentary unless \u201cinconsistent\u201d or \u201cplainly erroneous\u201d with the Guidelines provisions they interpret, but \u201cinconsistent\u201d is defined narrowly to mean that \u201cfollowing one will result in violating the dictates of the other.\u201d75<\/a><\/sup>Id.<\/em> at 43.<\/span> The Court acknowledged as much, writing that amendments to the commentary are \u201cbinding on federal courts even though [they are] not reviewed by Congress.\u201d76<\/a><\/sup>Id.<\/em> at 46.<\/span> The Guidelines commentary also instructs as to the proper application of \u201ceven unambiguous guidelines.\u201d77<\/a><\/sup>Id.<\/em> at 44.<\/span> Additionally, \u201cprior judicial constructions of a particular guideline cannot prevent the Commission from adopting a conflicting interpretation.\u201d78<\/a><\/sup>Id.<\/em> at 45.<\/span> As the Court noted, the Commission\u2019s own pronouncement of the role of the Guidelines commentary within the federal sentencing scheme ironically underestimated the prescriptive nature of the commentary in practice. The Commission predicted that \u201cthe courts will treat the commentary much like legislative history or other legal material that helps determine the intent of a drafter.\u201d79<\/a><\/sup>Id. <\/em>at 46 (quoting U.S.S.G. \u00a7 1B1.7). <\/span> However, the commentary operates far more rigidly in practice, and even the Commission itself indicated that a judge\u2019s failure to follow the commentary would constitute an incorrect application of the Guidelines they interpret, resulting in reversible error.80<\/a><\/sup>See Stinson<\/em>, 508 U.S. at 47.<\/span> Despite this, there is, of course, a limit to Stinson<\/em> deference. Judges should not defer to the commentary if doing so would \u201cresult in violating the dictates\u201d of the Guidelines.81<\/a><\/sup>Id.<\/em> at 43.<\/span><\/p>\n

In justifying such authoritative weight to the Guidelines commentary, the Stinson <\/em>Court drew support from textual, structural, and policy-based evidence unique to the federal sentencing scheme, such as the expansive deference to the commentary that was contemplated by the SRA.82<\/a><\/sup>See id.<\/em> at 45.<\/span> Namely, the SRA sets out statutory mandates for the Commission that operate best when courts defer to the Commission\u2019s interpretations of the Guidelines. Under the SRA, the Commission must \u201c\u2018periodically [] review and revise\u2019\u201d the Guidelines. In doing so, the Commission must \u201cconsult[] with authorities on and representatives of the federal criminal system,\u201d83<\/a><\/sup>Id.<\/em> (quoting 28 U.S.C. \u00a7 994(o)).<\/span> and \u201c\u2018revie[w] the presentence report, the guideline worksheets, the tribunal\u2019s sentencing statement, and any written plea agreement,\u2019 with respect to every criminal sentence.\u201d84<\/a><\/sup>Id. <\/em>at 45\u201346 (quoting Mistretta<\/em>, 488 U.S. at 369\u201370) (internal citation omitted); see also<\/em> 28 U.S.C. \u00a7 994(w).<\/span> Congress \u201c\u2018contemplated that the Commission would periodically review the work of courts, and would make whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest.\u2019\u201d85<\/a><\/sup>Stinson<\/em>, 508 U.S. at 46 (quoting Braxton v. United States, 500 U.S. 344, 348 (1991)).<\/span> Thus, the SRA permits the Commission to amend the Guidelines to incorporate revisions, and the Commission can also amend the Guidelines by amending the commentary.86<\/a><\/sup>See id.<\/em> at 45.<\/span><\/p>\n

Some of the Stinson <\/em>Court\u2019s justifications for deference to the Guidelines commentary also resemble those underlying deference to agency interpretations of their regulations. Courts defer to agency interpretations in recognition of the \u201cunique expertise and policy making prerogatives\u201d that render agencies more equipped to interpret their own regulations.87<\/a><\/sup>Martin v. Occupational Safety and Health Review Comm\u2019n, 499 U.S. 144, 151 (1991); see also <\/em>Ford Motor Credit Co. v. Milhollin, 444 U.S. 556 n.9 (1980) (explaining that \u201cdeference to administrative views is bottomed on respect for agency expertise\u201d).<\/span> In the Guidelines context, deference to the Guidelines commentary exemplifies respect towards the Commission\u2019s expertise on the federal criminal system. Despite these common rationales, however, the central driving force behind Stinson<\/em>\u2019s holding was the unique mandates laid out in the SRA, especially the Commission\u2019s responsibility to play a comprehensive, deliberative, and responsive role in guiding federal criminal sentencing. These core policy mandates informed the Court\u2019s conclusion that \u201cthe interpretations of the guidelines contained in the commentary represent the most accurate indications of how the Commission deems that the guidelines should be applied to be consistent with the Guidelines Manual as a whole as well as the authorizing statute.\u201d88<\/a><\/sup>Stinson<\/em>, 508 U.S. at 45.<\/span><\/p>\n

B.<\/em> Kisor v. Wilkie<\/strong><\/h5>\n

Over two and a half decades after it decided Stinson<\/em>, the Supreme Court decided Kisor v. Wilkie<\/em>, which limited the scope of the deference framework applicable to agency interpretations of their own regulations.89<\/a><\/sup>See <\/em>Kisor v. Wilkie, 588 U.S. 558, 563\u201364 (2019).<\/span> The Court noted that lower courts had been incorrectly applying Seminole Rock\/Auer<\/em> deference\u2014which called for deference to not-plainly-erroneous agency interpretations\u2014in a \u201creflexive\u201d manner.90<\/a><\/sup>Id.<\/em> at 574.<\/span> This was due to the Court\u2019s own \u201cmixed messages\u201d on the matter.91<\/a><\/sup>Id.<\/em><\/span> Although the Court had, in the past, applied Seminole Rock\/Auer<\/em> deference without much analysis, the Kisor<\/em> Court emphasized that the deference analysis did not simply start and end with determining whether an interpretive rule is \u201c\u2018plainly erroneous or inconsistent with the regulation\u2019\u201d it interprets.92<\/a><\/sup>Id.<\/em> (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)).<\/span> Rather, Seminole Rock\/Auer<\/em> deference \u201cgives agencies their due,\u201d while also \u201cobligating[] courts to perform their reviewing and restraining functions.\u201d93<\/a><\/sup>Id.<\/em><\/span> Thus, the Kisor <\/em>Court focused its opinion on clarifying the limits to Seminole Rock\/Auer<\/em> deference.<\/p>\n

First, the Kisor<\/em> Court clarified that courts should not grant Seminole Rock\/Auer<\/em> deference to agency interpretations of their regulations \u201cunless the regulation is genuinely ambiguous.\u201d94<\/a><\/sup>Kisor<\/em>, 325 U.S. at 574. <\/span> In determining whether a regulation is ambiguous, courts must \u201cexhaust all the \u2018traditional tools\u2019 of construction.\u201d95<\/a><\/sup>Id.<\/em> at 575 (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984)).<\/span> The Court reasoned that ambiguity is the proper starting point for Seminole Rock\/Auer<\/em> deference because deference to an interpretive rule when a regulation is clear would \u201c\u2018permit the agency, under the guise of interpreting a regulation, to create de facto<\/em> a new regulation.\u2019\u201d96<\/a><\/sup>Id.<\/em> at 575 (quoting Christensen v. Harris County, 529 U.S. 576, 588 (2000)).<\/span> Second, if a regulation is ambiguous, an agency\u2019s interpretation must fall within the \u201czone of ambiguity the court has identified after employing all its interpretive tools.\u201d97<\/a><\/sup>Id.<\/em> <\/span> This reasonableness standard mirrors that which had applied to agency constructions of statutes under Chevron<\/em>.98<\/a><\/sup>At the time Auer<\/em> was decided, Chevron<\/em> had not been overruled. See<\/em> Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412 (2024).<\/span> Third, and finally, the \u201ccharacter and context of the agency interpretation\u201d must \u201centitle[] it to controlling weight.\u201d99<\/a><\/sup>Kisor<\/em>, 588 U.S. at 576.<\/span> Courts should evaluate several factors when making this determination: whether the interpretation is one \u201cactually made by the agency\u201d or the agency\u2019s \u201c\u2018official position\u2019\u201d on a regulation,100<\/a><\/sup>Id.<\/em> at 577 (quoting U.S. v. Mead Corp., 533 U.S. 218, 257\u201359 (2001) (Scalia, J., dissenting)). <\/span> the interpretation \u201cimplicat[es] [an agency\u2019s] substantive expertise,\u201d101<\/a><\/sup>Id.<\/em><\/span> and the interpretation reflects \u201c\u2018fair and considered judgment,\u2019\u201d102<\/a><\/sup>Id.<\/em> at 579 (quoting Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012) (quoting Auer v. Robbins, 519 U.S. 462 (1997))).<\/span> meaning that the interpretation does not constitute a \u201c\u2018post hoc <\/em>rationalizatio[n]\u2019\u201d103<\/a><\/sup>Id.<\/em> (quoting Christopher<\/em>, 567 U.S. at 155).<\/span> of an agency\u2019s position, and would not create \u201c\u2018unfair surprise\u2019 to regulated parties.\u201d104<\/a><\/sup>Id.<\/em> (quoting Long Island Care v. Coke, 551 U.S. 158, 170 (2007)).<\/span><\/p>\n

Interestingly, the Kisor<\/em> Court maintained that it had not overruled Auer v. Robbins<\/em>, although it \u201ccabined\u201d its scope.105<\/a><\/sup>Kisor<\/em>, 588 U.S. at 580.<\/span> Resulting from its holding, however, is a deference framework that hardly resembles the \u201creflexive\u201d operation of Seminole Rock<\/em>\/Auer<\/em> deference and Stinson<\/em> deference. For instance, the first step of the Kisor<\/em> Court\u2019s reformulation of Seminole Rock<\/em>\/Auer<\/em> deference\u2014that courts should not defer unless a regulation is ambiguous as determined by exhausting the tools of statutory interpretation\u2014directly contradicts the Stinson<\/em> Court\u2019s assertion that the Guidelines commentary instructs how \u201ceven unambiguous<\/em> Guidelines are to be applied in practice.\u201d106<\/a><\/sup>Stinson v. United States, 508 U.S. 36, 44 (1993) (emphasis added).<\/span> Additionally, the Kisor<\/em> Court\u2019s \u201creasonableness\u201d standard has little resemblance to the Stinson <\/em>Court\u2019s \u201cplainly erroneous\u201d standard. Finally, the Kisor<\/em> Court\u2019s concerns with \u201cfair warning\u201d do not comport with the Stinson<\/em> Court\u2019s complete silence on the matter, although it had knowledge that the Commission often amends commentary in a non-contemporaneous manner with the Guidelines.107<\/a><\/sup>See id.<\/em> at 43.<\/span> Thus, Seminole Rock<\/em>\/Auer<\/em> deference as articulated by the Stinson<\/em> Court and later defined by the Kisor<\/em> Court are effectively two different deference frameworks.108<\/a><\/sup>Cf.<\/em> John S. Acton, The Future of Judicial Deference to the Commentary of the United States Sentencing Guidelines<\/em>, 45 HARV. J. L. & PUB. POL\u2019Y 349, 391 (2022) (discussing how Kisor<\/em> effectively overruled Stinson<\/em> because it \u201cbroke the relationship between Stinson<\/em>\u2019s analysis and its holding\u201d).<\/span> Even more confounding is the Kisor<\/em> Court\u2019s absolute silence on the Guidelines, the commentary, or the Commission in its opinion.<\/p>\n

Despite the Kisor<\/em> Court\u2019s cabining of Seminole Rock<\/em>\/Auer<\/em> deference, it reiterated the many rationales that support why deference to interpretive rules is appropriate in the first place. The central theory justifying any application of Seminole Rock<\/em>\/Auer<\/em> deference is a recognition that \u201csometimes the law runs out, and policy-laden choice is what is left over.\u201d109<\/a><\/sup>Kisor<\/em>, 588 U.S. at 575.<\/span> Agencies, as the drafters of regulations, are therefore best equipped to interpret ambiguous regulations. Not only are agencies tasked with making policy judgments that fulfill their statutory mandates, but \u201c[a]gencies (unlike courts) have \u2018unique expertise,\u2019 often of a scientific or technical nature, relevant to applying a regulation \u2018to complex or changing circumstances.\u2019\u201d110<\/a><\/sup>Id.<\/em> at 571 (quoting Martin v. Occupational Safety and Health Review Comm\u2019n, 499 U.S. 144, 151 (1991).<\/span> Additionally, agencies have the benefit of regulatory experience, which provides a big picture perspective of how experts have handled certain \u201cissues over the long course of administering a regulatory program.\u201d111<\/a><\/sup>Id.<\/em> <\/span> Also favoring deference is the fact that agencies are politically accountable actors, subject to the supervision of the President, who \u201cin turn answers to the public.\u201d112<\/a><\/sup>Id.<\/em> at 572.<\/span> Courts, on the other hand, are free to interpret regulations in manners inconsistent with democratic norms and without repercussion. Finally, the \u201cwell-known benefits of uniformity in interpreting genuinely ambiguous rules\u201d also favor deferring to agency interpretations of their own regulations.113<\/a><\/sup>Id.<\/em><\/span> Judges are more likely than are agencies to \u201ccome to divergent conclusions\u201d regarding the meaning of a given regulation because regulations are often able to support \u201cmore than one eminently reasonable reading.\u201d114<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Though the Kisor <\/em>Court reiterated many of these rationales, it still ultimately endorsed a limited deference framework. As the Court explained, courts should \u201cpresume that Congress intended for courts to defer to agencies when they interpret their own ambiguous<\/em> rules.\u201d115<\/a><\/sup>Kisor<\/em>, 588 U.S. at 573 (emphasis added).<\/span> In order to avoid agencies creating \u201cde facto\u201d new regulations,116<\/a><\/sup>Id.<\/em> at 575.<\/span> the Supreme Court in Kisor<\/em> ultimately advocated for \u201ca strong judicial role in interpreting [agency] rules.\u201d117<\/a><\/sup>Id.<\/em> at 580.<\/span><\/p>\n

C. The Circuit Split Surrounding <\/em>Stinson and <\/em>Kisor<\/h5>\n

After the Supreme Court decided Kisor<\/em>, lower courts faced an imperative choice in federal sentencing cases for which the Kisor<\/em> Court left little guidance. Either courts could find that Stinson<\/em>\u2019s ultimate holding is distinct from and remains unaffected by Kisor<\/em>, or they could choose to apply Kisor <\/em>to the Guidelines commentary by maintaining Stinson<\/em>\u2019s analogy between Guidelines commentary and agency interpretations of their regulations. The federal courts of appeals can be roughly divided into these two camps, although their reasonings for taking one or the other approach diverge considerably.118<\/a><\/sup>This section also discusses opinions by individual judges that depart from the majority view taken by their circuit and circuit court opinions in circuits that have not taken an official position. Two Fourth Circuit opinions fall into this latter camp. Within a single year, the Fourth Circuit issued two conflicting opinions on this issue in United States v. Campbell, 22 F.4th 438 (4th Cir. 2022) (finding that Kisor<\/em> \u201cat the very least undermined\u201d Fourth Circuit precedent that rested on Stinson<\/em>) and United States v. Moses, 23 F.4th 347, 349 (4th Cir. 2022) (\u201cUpon consideration of the unique role served by the Sentencing Commission and its Guidelines Manual and a careful reading of both Stinson<\/em> and Kisor<\/em>, we conclude that Kisor<\/em> did not overrule Stinson<\/em>\u2019s standard for the deference owed to Guidelines commentary.\u201d). <\/span><\/p>\n

1. Courts That Continue to Follow <\/em>Stinson<\/h6>\n

Courts in the Second, Fifth, Seventh, and Tenth Circuits119<\/a><\/sup>United States v. Rainford, 110 F.4th 455 (2d Cir. 2024); United States v. Vargas, 74 F.4th 673 (5th Cir. 2023); United States v. White, 97 F.4th 532 (7th Cir. 2024); United States v. Maloid, 71 F.4th 805 (10th Cir. 2023), cert. denied<\/em>, 144 S. Ct. 1035 (2024). <\/span> have chosen to faithfully apply Stinson<\/em> until the Supreme Court says otherwise.<\/p>\n

First<\/em>, these courts rest their approach on qualities unique to the Sentencing Commission that justify reflexive deference. United States v. Vargas <\/em>exemplifies this point well. In Vargas<\/em>, the Fifth Circuit Court of Appeals explained that Guidelines commentary must be flatly inconsistent with the Guideline to withhold deference.120<\/a><\/sup>Vargas<\/em>, 74 F.4th at 689\u201390. <\/span> The court explained that \u201cStinson<\/em> deference differs from Seminole Rock<\/em> in important ways.\u201d121<\/a><\/sup>Id.<\/em> at 682; see also <\/em>United States v. Dupree, 57 F.4th 1269, 1284 (11th Cir. 2023) (en banc) (Grant, J., concurring in the judgment) (clarifying that Stinson<\/em> and Seminole Rock<\/em> deference are not \u201cinterchangeable\u201d).<\/span> For one, Stinson<\/em> deference applies even if a Guideline is unambiguous, while Seminole Rock<\/em> \u201crequired deference only when \u2018the meaning of the words used [was] in doubt.\u2019\u201d122<\/a><\/sup>Id.<\/em> at 682 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). Of course, this feature of Stinson<\/em> also renders it diametrically opposed to Kisor<\/em>\u2019s articulation of Auer<\/em> deference, which demands ambiguity as a necessary starting point to deference to agency interpretations of their own rules. Kisor<\/em>, 588 U.S. at 573.<\/span> Moreover, under Stinson <\/em>deference, interpretations put forth in Guidelines commentary trump even conflicting prior judicial interpretations of the Guidelines they interpret.123<\/a><\/sup>Vargas<\/em>, 74 F.4th at 682.<\/span> As the Vargas<\/em> court explained, these distinct features of Stinson<\/em> deference are directly responsive to the Commission\u2019s statutory mandate to reduce \u201cunwarranted sentencing disparities.\u201d124<\/a><\/sup>Id.<\/em> at 683 (quoting 28 U.S.C. \u00a7 991(b)(1)(B)).<\/span><\/p>\n

The Fourth Circuit in United States v. Moses<\/em> expanded upon this point in another case involving the \u201ccareer offender\u201d enhancement.125<\/a><\/sup>United States v. Moses, 23 F.4th 347, 349 (4th Cir. 2022). <\/span> The Moses<\/em> court explained that the Commission is tasked with \u201ccabin[ing] the sentencing discretion\u201d of judges and does so by promulgating a Guidelines Manual \u201cstructured with interrelated layers of explanation consisting of Guidelines, policy statements, and official commentary.\u201d126<\/a><\/sup>Id.<\/em> at 354.<\/span> In line with this, the commentary does not exist solely to interpret the Guidelines, but to explain how the Guidelines should be applied \u201cin a manner most \u2018consistent with the Guidelines Manual as a whole.\u2019\u201d127<\/a><\/sup>Id.<\/em> at 356 (quoting Stinson v. United States, 508 U.S. 36, 45 (1993)).<\/span> Adding to this discussion, the Tenth Circuit in United States v. Maloid128<\/a><\/sup><\/em>71 F.4th 795 (10th Cir. 2023).<\/span><\/em> explained that another one of the Commission\u2019s mandates is to periodically review sentencing materials in \u201cevery federal criminal sentence\u201d and \u201cmak[e] whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest.\u201d129<\/a><\/sup>Id. <\/em>at 803 (quoting Stinson<\/em>, 508 U.S. at 46). <\/span> Thus, Stinson<\/em> deference acknowledges that the commentary is just one tool that the Commission can use to regularly revise the Guidelines\u2014so long as the Guidelines it interprets can \u201cbear [its] construction.\u201d130<\/a><\/sup>Id.<\/em> (quoting Stinson<\/em>, 508 U.S. at 46). Similarly, as Judge Grant, concurring in United States v. Dupree<\/em>, noted, the Stinson<\/em> Court also sanctioned the Commission\u2019s use of commentary to \u201ceffect a change in interpretation of the overall Guidelines.\u201d 57 F.4th 1269, 1285 (11th Cir. 2023) (en banc) (Grant, J., concurring in the judgment).<\/span><\/p>\n

Second<\/em>, courts that continue to follow Stinson<\/em> do so due to the simple fact that the Supreme Court has not yet overruled Stinson<\/em>. Vargas<\/em> again summarizes this point well. As the Vargas <\/em>Court explained, the principle of vertical stare decisis commands that \u201c[u]ntil the Supreme Court overrules Stinson<\/em>, then, [its] duty as an inferior court is to apply it faithfully.\u201d131<\/a><\/sup>United States v. Vargas, 74 F.4th 673, 678 (5th Cir. 2023).<\/span> The Supreme Court has already instructed lower courts to \u201cadhere strictly to Supreme Court precedent,\u201d regardless of whether they \u201cthink a precedent\u2019s best days are behind it.\u201d132<\/a><\/sup>Id.<\/em> at 683 (citing Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023) (lower courts \u201cshould follow the case which directly controls, . . . even if the lower court thinks the precedent is in tension with \u2018some other line of decisions.\u2019\u201d (quoting Rodriguez de Quijas v. Shearson\/Am. Express, Inc., 490 U.S. 477, 484 (1989)))). <\/span> As these principles demonstrate, because the Supreme Court has not yet authoritatively spoken on the precedential status of Stinson<\/em>, it is still the law of the land.<\/p>\n

Third<\/em>, courts that faithfully apply Stinson<\/em> insist that the rationales in Kisor<\/em> for narrowing the scope of Seminole Rock<\/em>\/Auer<\/em> deference do not apply to the Sentencing Commission. United States v. Maloid<\/em> best summarizes this point. In Maloid<\/em>, the Tenth Circuit Court of Appeals applied Stinson <\/em>rather than Kisor<\/em>, because \u201cKisor<\/em> had everything to say about executive agencies and precious little about the Sentencing Commission.\u201d133<\/a><\/sup>Maloid<\/em>, 71 F.4th at 806. <\/span> The court explained that, while administrative agencies primarily exist to \u201cregulate the public,\u201d the Commission exists to \u201c\u2018establish sentencing policies and practices\u2019 for the courts.\u201d134<\/a><\/sup>Id. <\/em>at 806\u201307 (quoting 28 U.S.C. \u00a7\u00a7 991(b)(1)\u2013(2)). <\/span> Unlike administrative agencies, the Commission has \u201cno enforcement or investigative authority\u201d135<\/a><\/sup>Id. <\/em>at 807.<\/span> and has a smaller \u201cscope of rulemaking authority [than that which] most executive agencies enjoy.\u201d136<\/a><\/sup>Id.<\/em> While the Commission can only promulgate policy through Guidelines, policy statements and commentary, executive agencies have the choice between \u201cformal and informal rulemaking, adjudications, legal briefs, and FAQ documents, to name a few.\u201d Id.<\/em><\/span> At a high level, the Commission \u201cspeaks as an agent of the Judiciary to help judges properly sentence defendants.\u201d137<\/a><\/sup>Id<\/em>.<\/span> Thus, the court explained that these unique attributes rendered it incongruous to apply Kisor<\/em>\u2019s underlying rationales to deference within the Sentencing Commission context.<\/p>\n

2. Courts That Follow <\/em>Kisor<\/h6>\n

Courts in the Third, Sixth, Ninth, and Eleventh Circuits believe that Kisor<\/em> is the proper rule of decision for cases involving the Guidelines commentary.138<\/a><\/sup>See <\/em>United States v. Nasir, 17 F.4th 459, 471 (3d Cir. 2021) (en banc); United States v. Riccardi, 989 F.3d 476, 485 (6th Cir. 2021); United States v. Castillo, 69 F.4th 648, 651 (9th Cir. 2023); United States v. Dupree, 57 F.4th 1269, 1276\u201377 (11th Cir. 2023). <\/span><\/p>\n

First<\/em>, courts that have applied Kisor<\/em> in federal criminal sentencing cases recognize that Kisor<\/em> directly spoke to the rationales underlying Stinson<\/em>. The Eleventh Circuit in United States v. Dupree<\/em> best conveyed this point. In Dupree<\/em>, the Eleventh Circuit, sitting en banc, acknowledged that, while \u201c[t]he Supreme Court did not overrule Stinson<\/em>,\u201d139<\/a><\/sup>Dupree<\/em>, 57 F.4th at 1275.<\/span> \u201cthe only way to harmonize [it with Kisor<\/em>] is to conclude that Kisor<\/em>\u2019s gloss on Auer<\/em> and Seminole Rock<\/em> applies to Stinson<\/em>.\u201d140<\/a><\/sup>Id.<\/em> <\/span> As the court noted, \u201cStinson<\/em> adopted word for word the test the Kisor<\/em> majority regarded as a \u2018caricature\u2019\u201d of the proper doctrine.141<\/a><\/sup>Id.<\/em><\/span> In light of this, \u201cthe continued mechanical application of that test would conflict directly with Kisor<\/em>.\u201d142<\/a><\/sup>Id.<\/em><\/span> Moreover, the Supreme Court in Kisor<\/em> took note of Stinson<\/em> \u201cas one of the Court\u2019s \u2018legion\u2019 Seminole Rock<\/em> cases that pre-dated Auer.<\/em>\u201d143<\/a><\/sup>Id.<\/em> at 1276 (quoting Kisor v. Wilkie, 588 U.S. 558, 568 n.3 (2019)).<\/span> This provided authoritative support that Kisor<\/em> deference applies to the Guidelines commentary.144<\/a><\/sup>See id.<\/em> at 1276\u201377.<\/span><\/p>\n

Second<\/em>, courts that apply Kisor<\/em> reason that extending Kisor<\/em> deference to federal criminal sentencing cases reinforces the Commission\u2019s obligation to follow its mandated procedures. The Sixth Circuit exemplified this rationale in United States v. Riccardi<\/em>. In this case, the Sixth Circuit overturned Jennifer Riccardi\u2019s sentence, which was enhanced under U.S.S.G. \u00a7 2B1.1(b)(1) based on the loss resulting from her theft offense.145<\/a><\/sup>United States v. Riccardi, 989 F.3d 476, 479\u201380 (6th Cir. 2021).<\/span> Guidelines commentary provided that a loss \u201c\u2018shall not be less than $500\u2019 for each \u2018unauthorized access device,\u2019 a phrase that Riccardi concede[d] covers stolen gift cards.\u201d146<\/a><\/sup>Id.<\/em> at 479 (quoting U.S.S.G. \u00a7 2B1.1 cmt. n.3(F)(i)).<\/span> The Riccardi <\/em>court found this commentary to be an \u201cimproper expansion beyond . . . \u00a7 2B1.1\u2019s text\u201d147<\/a><\/sup>Id.<\/em> at 480.<\/span> and \u201ca substantive legislative rule that belongs in the guideline itself to have force.\u201d148<\/a><\/sup>Id.<\/em> at 483.<\/span> The court was specifically concerned with the Commission\u2019s ability to effectively amend the Guidelines without following statutorily mandated procedures.149<\/a><\/sup>See id.<\/em> at 485.<\/span> Kisor<\/em> deference, however, prevented agencies from \u201cadopt[ing] a new legislative rule under the guise of reinterpreting an old one.\u201d150<\/a><\/sup>Id.<\/em><\/span> Thus, although the Commission is not subject to the Administrative Procedure Act\u2019s (\u201cAPA\u201d) judicial review provision,151<\/a><\/sup>See <\/em>5 U.S.C. \u00a7\u00a7 701, 706.<\/span> the court concluded that the \u201chealthy judicial review\u201d reinforced by Kisor<\/em> applied with equal force to the Commission.152<\/a><\/sup>Riccardi<\/em>, 989 F.3d at 485. <\/span><\/p>\n

Third<\/em>, courts that apply Kisor<\/em> deference to the Guidelines commentary reason that doing so better preserves the individual liberty of defendants. In United States v. Nasir<\/em>, Judge Bibas wrote a concurring opinion articulating this point. Joined by five judges, Judge Bibas argued in favor of Kisor<\/em> deference due to a core principle underlying the rule of lenity: \u201cthe nation\u2019s strong preference for liberty.\u201d153<\/a><\/sup>United States v. Nasir, 17 F.4th 459, 473 (3d Cir. 2021) (Bibas, J., concurring).<\/span> Because \u201cthe presumption of liberty remains crucial to guarding against overpunishment,\u201d154<\/a><\/sup>Id.<\/em> at 474.<\/span> Judge Bibas argued, the rule of lenity was appropriate in any reading of an ambiguous guideline where there is a \u201cmore lenient [version] of two plausible readings.\u201d155<\/a><\/sup>Id.<\/em><\/span> Judge Bibas concluded that a preference for individual liberty, as pursued through the rule of lenity, outweighed \u201c[w]hatever the virtues of giving experts flexibility to adapt rules to changing circumstances in civil cases.\u201d156<\/a><\/sup>Id.<\/em><\/span><\/p>\n

IV. The Supreme Court Should Reaffirm\u00a0Stinson\u00a0<\/em>on Renewed Grounds<\/span><\/h4>\n

This Note argues that Stinson<\/em>\u2019s reflexive deference to the Guidelines commentary with a corresponding increase in departures from the Guidelines is the correct approach. The Supreme Court should thus reaffirm Stinson<\/em> on renewed grounds. The proposal put forth in this Note is preferable for three predominating reasons: (1) reflexive deference best pursues the Commission\u2019s policy mandates and is contemplated by the SRA; (2) reflexive deference is more justified in light of the advisory nature of the Guidelines; and (3) reflexive deference better preserves principles of stare decisis because Stinson<\/em> was not wrongly decided.<\/p>\n

The Supreme Court\u2019s reasoning in Stinson <\/em>largely rested on an analogy between agency interpretations of their regulations and the Guidelines commentary.157<\/a><\/sup>See <\/em>Stinson v. United States, 508 U.S. 36, 44\u201345 (1993).<\/span> However, this has not only resulted in confusion and created a circuit split over the proper level of deference to the Guidelines commentary, but it is also unrelated to what specifically justifies reflexive deference in this context. Thus, the Court should reaffirm Stinson<\/em>\u2019s holding but focus its reasoning on the Commission\u2019s distinctive attributes and policy mandates, as is discussed below. To this end, the rationales put forth in this Note do not simply restate those underpinning Seminole Rock<\/em>\/Auer<\/em> and Kisor <\/em>deference\u2014namely, agency expertise, uniformity, and political accountability.158<\/a><\/sup>See <\/em>Kisor v. Wilkie, 588 U.S. 558, 571\u201372 (2019). <\/span> Although there are certainly areas of overlap, this Note focuses on rationales either specific to the Sentencing Commission context or those that have extra force in this context.<\/p>\n

Several commentators have similarly proposed various solutions regarding the proper role of deference to the Guidelines commentary, some borrowing from deference doctrines in administrative law and others not; however, unlike the proposal put forth in this Note, these approaches all fail to adequately contend with the advisory nature of the Guidelines. One approach would not broach the deference question until first determining whether a commentary truly interprets a Guideline or expands upon it\u2014if the latter, then courts must instruct the Commission to re-promulgate the commentary using the procedures required for Guidelines amendments or else not defer to the commentary.159<\/a><\/sup>See, e.g.<\/em>, Tim Steininger, Due Deference: <\/em>Kisor, <\/em>Stinson, and the United States Sentencing Commission<\/em>, 98 NOTRE DAME L. REV. 2287, 2304\u201305 (2023).<\/span> Another approach would do away with deference doctrines altogether in the Sentencing Commission context and adopt the relationship between the Federal Rules of Civil Procedure and its Application Notes, the latter of which judges are not formally obliged to look at.160<\/a><\/sup>See, e.g.<\/em>, Amy Walker, An Apt Analogy?: Rethinking the Role of Judicial Deference to the U.S. Sentencing Guidelines Post-<\/em>Kisor, 92 FORDHAM L. REV. 2805, 2846\u201348 (2024). <\/span> A third approach, supported by several commentators, would simply apply Kisor<\/em> deference to the Guidelines commentary in place of Stinson<\/em> deference.161<\/a><\/sup>See, e.g.<\/em>, Acton, supra<\/em> note 108, at 386\u2013405 (imploring the Supreme Court to overrule Stinson<\/em>); Liam Murphy, What’s the Deference? Interpreting the U.S. Sentencing Guidelines after <\/em>Kisor, 75 VAND. L. REV. 957, 994\u201395 (2022) (criticizing Stinson<\/em> deference but arguing that \u201cKisor<\/em> may represent new authority\u201d in this domain); Jarrett Faber, Kisor v. Wilkie As A Limit on Auer Deference in the Sentencing Context<\/em>, 70 EMORY L.J. 905, 953 (2021) (same).<\/span><\/p>\n

Underlying all these approaches is the impetus to prevent the Commission from making substantive amendments to the Guidelines through the commentary without utilizing the proper procedures.162<\/a><\/sup>Steininger, supra<\/em> note 159, at 2306 (arguing that \u201c[u]nder both Kisor<\/em> and Stinson<\/em>, deference expressly applies only to an agency\u2019s interpretation <\/em>of its regulation\u201d); Walker, supra<\/em> note 163, at 2845 (arguing that the Commission should \u201cadhere strictly to the notice-and-comment procedures for substantive amendment and use commentary to genuinely guide<\/em> subsequent interpretation\u201d); Acton, supra<\/em> note 108, at 393 (discussing how \u201cthere are strong formalist reasons to ignore the Commission\u2019s self-imposed procedures [to promulgate Guidelines commentary],\u201d and that the statutory difference in procedures required to promulgate the Guidelines versus the commentary is \u201cfundamental\u201d); Murphy, supra<\/em> note 161, at 989 (criticizing the Commission\u2019s ability to recommend additional punishment via commentary and the problems of \u201cforegone procedure and deficient notice\u201d this raises).<\/span> This concern is especially heightened given the Commission\u2019s ability to expand the criminal liability of individual defendants.163<\/a><\/sup>Steininger, supra<\/em> note 159, at 2291 (arguing that \u201cin the sentencing context, the stakes of deference are higher,\u201d because \u201c[a]n individual\u2019s liberty is often on the line\u201d); Acton, supra<\/em> note 108, at 397\u2013403 (arguing that \u201c[p]rinciples of lenity counsel against Stinson <\/em>deference\u201d); Faber, supra<\/em> note 161, at 932 (contending that \u201cAuer<\/em> deference in the sentencing context poses problems far and above those posed in the administrative context more generally,\u201d because \u201cdeference might be granted at the expense of a criminal defendant\u2019s liberty\u201d).<\/span> However, given judges\u2019 ability to depart from the Guidelines post-Booker<\/em> even based on their policy disagreements,164<\/a><\/sup>See <\/em>Kimbrough v. United States, 552 U.S. 85, 107\u201308 (2007).<\/span> a better approach is for courts to not police the Commission\u2019s discretion to promulgate policy through the Guidelines or commentary and, instead, depart from the Guidelines when necessary.<\/p>\n

It is also worth acknowledging the apparent tension within a proposal that favors deference to the Guidelines commentary but also encourages departures from the Guidelines. In fact, this tension exists at the very core of the Sentencing Commission itself. On one hand, the Commission promulgates Guidelines that promote uniformity in sentencing, even after becoming advisory post-Booker<\/em>, because they serve as \u201cthe starting point and the initial benchmark\u201d of any sentencing decision.165<\/a><\/sup>Gall v. United States, 552 U.S. 38, 49 (2007).<\/span> On the other hand, the Guidelines are meant to be evolutionary,166<\/a><\/sup>See <\/em>U.S.S.G. \u00a7 1A1.3.<\/span> a quality that can only be realized when judges exercise their discretion to depart from the Guidelines. This tension, however, is better characterized as a balancing act that evinces exactly what the Guidelines are meant to do. Congress intended for the Guidelines to both serve as a benchmark to reduce the problem of sentencing disparities167<\/a><\/sup>See id.<\/em> \u00a7 1B1.1.; Gall<\/em>, 552 U.S. at 49 (2007) (designating the Guidelines as the \u201cinitial benchmark\u201d for sentencing); U.S.S.G. ch. 1, pt. A, intro. 4(b) (explaining that the Commission will refine the Guidelines over time by monitoring judges\u2019 reasons for departures); see also<\/em> 28 U.S.C. \u00a7 994(o) (mandating periodic review and revision of the Guidelines).<\/span> and mature according to judges\u2019 actual sentencing decisions.168<\/a><\/sup>See id.<\/em> \u00a7 1A2.<\/span> Accordingly, the Guidelines do not prescribe exact sentencing directives: rather, they carve out a \u201cheartland\u201d169<\/a><\/sup>Id.<\/em> \u00a7 1A1.4(b).<\/span> of \u201ctypical\u201d offenses and associated sentencing ranges, which are meant to be shaped by the realities of actual criminal cases that only sentencing judges are attuned to.<\/p>\n

To understand how this proposal would play out in practice, the facts of Chandler<\/em> can again serve as an example. Under a reflexive deference framework, the sentencing court would refer to the commentary of U.S.S.G. \u00a7 2A4.1 and \u00a7 2B3.1 and find that the definition of a dangerous weapon includes instruments resembling an object capable of inflicting serious harm or death.170<\/a><\/sup>Id.<\/em> \u00a7 1B1.1, comment. (n.1(E)).<\/span> The court would be resigned to interpreting the Guidelines as covering James Chandler\u2019s crime because he used a fake gun during his robberies. But perhaps the court believes that \u201c[a] dangerous weapon must be both dangerous and a weapon,\u201d but that \u201c[f]ake guns are neither.\u201d171<\/a><\/sup>United States v. Chandler, 104 F.4th 445, 461 (3d Cir. 2024) (Bibas, J., dissenting).<\/span> In this case, the court would exercise its discretion to depart from \u00a7 2A4.1 and \u00a7 2B3.1 based on its disagreement with the policy judgment reflected in these guidelines to punish the use of fake weapons. This is permissible under Kimbrough<\/em>.172<\/a><\/sup>See <\/em>Kimbrough v. United States, 552 U.S. 85, 91 (2007).<\/span> Finally, on review of sentencing data involving these Guidelines, the Commission would consider whether enough courts departed from these Guidelines to warrant their reconsideration and evaluate the grounds of departure to determine what amendments to the Guidelines are called for.<\/p>\n

A. Reflexive Deference Better Fulfills the Commission\u2019s Policy Mandates and is Contemplated by the SRA<\/em><\/h5>\n

Reflexive deference better fulfills the Commission\u2019s policy mandates provided in the SRA. At first blush, it may seem odd to recommend a deference framework because of its operational benefits, rather than its ability to enhance the accuracy of legal interpretations. However, as mentioned, the rationales proposed in this Note are not mutually exclusive from those elsewhere in administrative law devoted to improving legal interpretations: for example, that institutions with expertise can best interpret the meaning of their own regulations.173<\/a><\/sup>See <\/em>Kisor v. Wilkie, 588 U.S. 558, 571 (2019).<\/span> Moreover, rationales based in operational benefits are certainly not foreign elsewhere in administrative law. For instance, the Court has justified deferring to agency interpretations due to agencies\u2019 greater relative political accountability to those subject to their rules.174<\/a><\/sup>See id.<\/em> at 571\u201372.<\/span> Thus, this Note argues that reflexive deference should be upheld particularly because it facilitates the Commission\u2019s unique duties\u2014namely, to (1) increase the uniformity of federal criminal sentencing by reducing sentencing disparities175<\/a><\/sup>See <\/em>28 U.S.C. \u00a7 991(b)(1)(B).<\/span> and (2) periodically review and revise the Guidelines based on its consultation with authorities in the federal criminal sentencing system176<\/a><\/sup>See id.<\/em> \u00a7 994(o).<\/span> and its review of all federal sentencing judgments, presentence reports, Guidelines worksheets, and written plea agreements.177<\/a><\/sup>See id.<\/em> \u00a7 994(w).<\/span> This rationale also disposes of the objection that reflexive deference is inconsistent with the Court\u2019s departure from deference to administrative agencies.<\/p>\n

1. Reflexive Deference Increases Certainty and Uniformity<\/em><\/h6>\n

It is widely accepted that deference to agencies is associated with the benefit of promoting uniformity in the application of agency policy. As the Supreme Court has asserted, deference ensures the resolution of interpretational questions through \u201cuniform administrative decision, rather than piecemeal through litigation.\u201d178<\/a><\/sup>Kisor<\/em>, 588 U.S. at 572 (citation omitted).<\/span> The Supreme Court in Kisor<\/em> reaffirmed the \u201cwell-known benefits of uniformity in interpreting ambiguous rules\u201d: this was a major reason the Court did not overrule Seminole Rock<\/em>\/Auer<\/em> deference in favor of a narrower form of deference (although it did severely cabin it).179<\/a><\/sup>Id.<\/em> Courts and commentators have justified Chevron<\/em> deference for this reason. See infra<\/em> Part IV.<\/span> Empirical research studying the impact of Chevron<\/em> deference on the operation of administrative law demonstrates that deference to agencies does, in practice, actually result in greater uniformity in the interpretation of regulatory policy.180<\/a><\/sup>See, e.g.<\/em>, Kent Barnett, Christina L. Boyd & Christopher J. Walker, Administrative Law\u2019s Political Dynamics<\/em>, 71 VAND. L. REV. 1463, 1481 (2019) (reporting \u201cthat agencies prevailed 39% more often under Chevron<\/em> than de novo review\u201d).<\/span> Thus, it is easy to imagine how reflexive deference would ensure even more uniformity in the application of the Guidelines than would Kisor<\/em> deference, which does not permit deference except to interpret \u201cgenuinely ambiguous regulations.\u201d181<\/a><\/sup>Kisor<\/em>, 588 U.S. at 563.<\/span><\/p>\n

This justification is especially important in the Sentencing Commission context: a uniform application of the Guidelines is central to the Commission\u2019s ability to fulfill its congressional mandate, which is not the case for most administrative agencies. A primary goal of the Commission is to reduce \u201cexcessive sentencing disparities.\u201d182<\/a><\/sup>Peugh v. United States, 569 U.S. 530, 536 (2013); see also <\/em>28 U.S.C. \u00a7 991(b)(1)(B).<\/span> This is best pursued when judges follow the policies and recommendations put forth in the Guidelines Manual regardless of whether such policies appear in the Guidelines themselves, the commentary, or policy statements.183<\/a><\/sup>See Peugh<\/em>, 569 U.S. at 531 (finding that sentences anchored by the Guidelines promote uniformity).<\/span> One of the original Guidelines promulgated by the Commission instructs courts that their \u201c[f]ailure to follow [Guidelines] commentary could constitute an incorrect application of the [G]uidelines, subjecting the sentence to possible reversal on appeal.\u201d184<\/a><\/sup>U.S.S.G. \u00a7 1B1.7.<\/span> This demonstrates that the Commission itself contemplated Guidelines commentary as a means by which it promulgates sentencing policy. Congress has also implicitly sanctioned this interpretation of Guidelines commentary many times over because it periodically reviews the Guidelines Manual as a \u201creticulated whole\u201d that is routinely subjected to the same congressional-submission procedures each time the Commission amends the Guidelines.185<\/a><\/sup>United States v. Moses, 23 F.4th 347, 355 (4th Cir. 2022).<\/span><\/p>\n

Kisor<\/em> deference would impede the Commission\u2019s ability to ensure a uniform application of the Guidelines. Rather than having a unifying effect on court interpretations, the commentary would influence the interpretations of only those Guidelines that courts deem \u201cgenuinely ambiguous.\u201d186<\/a><\/sup>Kisor<\/em>, 588 U.S. at 563.<\/span> Courts would divide even over the question of whether a Guideline is ambiguous, the answer to which would, in turn, dictate whether they consult the Guidelines commentary.187<\/a><\/sup>See <\/em>United States v. Dupree, 57 F.4th 1269, 1286 (11th Cir. 2023) (Grant, J., concurring).<\/span> As Judge Grant discussed in her concurrence in United States v. Dupree<\/em>, Kisor <\/em>deference would hamper the Commission\u2019s ability to reduce excessive sentencing disparities because \u201csimilarly situated defendants may receive substantially different sentences just because courts cannot agree whether a guideline\u2019s text is still sufficiently ambiguous after applying the traditional tools of construction.\u201d188<\/a><\/sup>Id. <\/em>at 1287. <\/span> Thus, where a Guidelines commentary was once uncontroversial, disagreements over whether it should be given weight would inevitably arise, thereby \u201cshifting the ultimate responsibility for sentencing policy from the Commission to the courts.\u201d189<\/a><\/sup>See id.<\/em><\/span><\/p>\n

The increasing complexity of the Guidelines also counsel against the propriety of using elaborate deference frameworks borrowed from administrative law, like Kisor <\/em>deference. The Guidelines, commentary, and policy statements have become increasingly lengthy and convoluted since the Commission promulgated its first Guidelines Manual in 1984.190<\/a><\/sup>See <\/em>Breyer, supra<\/em> note 31, at 185 (\u201cThe original 1987 Guidelines draft was just over 200 pages long, and many criticized that draft as too lengthy and too complex. The Guidelines are now twice as long.\u201d). The most recent Guidelines promulgated in 2025 are 516 pages long. See generally <\/em>GUIDELINES, supra<\/em> note 2.<\/span> Complexity is not inherently problematic per se, but, in operation, it frustrates the Commission\u2019s ability to fulfill its statutory goals. For instance, complexity encourages judges to rely on heuristics when faced with difficult sentencing decisions.191<\/a><\/sup>See<\/em> R. Barry Ruback & Jonathan Wroblewski, The Federal Sentencing Guidelines: Psychological and Policy Reasons for Simplification<\/em>, 7 PSYCHOL. PUB. POL\u2019Y & L. 739, 753\u201354, 763 (Dec. 2001) (discussing how complex decision-making causes decisionmakers to default to heuristics, errors, or biases which inserts uncertainty into the federal criminal sentencing scheme).<\/span> Complexity can also lead to minute distinctions in sentencing recommendations that do not make any difference in practice.192<\/a><\/sup>See <\/em>R. Barry Ruback, Warranted and Unwarranted Complexity in the U.S. Sentencing Guidelines<\/em>, 20 LAW & POL\u2019Y 357, 358, 376 (July 1998) (discussing how the overall length of the Guidelines, legal complexity, and number of amendments are not wholly warranted based on whether such complexity results in different sentencing outcomes in practice). The Commission itself recognized in its original introduction to the Guidelines Manual that \u201c[t]he greater the number of decisions required and the greater the complexity, the greater the risk that different courts would apply the guidelines differently to situations that, in fact, are similar, thereby reintroducing the very disparity that the guidelines were designed to reduce.\u201d U.S.S.G. Ch. 1, Pt. 1 (1987).<\/span> Kisor<\/em> deference, which involves multiple analytical steps and has been critiqued for being overly complex,193<\/a><\/sup>See <\/em>Tara Leigh Grove, Sacrificing Legitimacy in a Hierarchical Judiciary<\/em>, 121 COLUM. L. REV. 1555, 1602\u201303 (2021) (describing how Kisor<\/em> \u201ccraft[ed] a complex new five-part test,\u201d whose application \u201cdepend[s] heavily on the lower federal courts[]\u201d); Zubin Khambatta, The Future of Deference to Health Care Sub-Regulatory Guidance Under <\/em>Kisor v. Wilkie, 14 J. HEALTH & LIFE SCI. L. 8, 8, 21 (2020) (discussing how Kisor<\/em>\u2019s \u201ccomplex checklist of threshold factors\u201d may expand judicial discretion enough to leave agency interpretations \u201cmore vulnerable to challenges in court\u201d).<\/span> would add complexity to the operation of the Guidelines and hamper its central purpose of increasing uniformity in sentencing.<\/p>\n

2. Reflexive Deference Enables the Dynamic Nature of the Guidelines<\/em><\/h6>\n

Reflexive deference better allows the Commission to dynamically revise the Guidelines through its consultation with authorities on the federal criminal justice system and analysis of federal criminal sentencing data.194<\/a><\/sup>See <\/em>20 U.S.C. \u00a7 994(o), (w).<\/span> For one, reflexive deference to the Guidelines commentary facilitates the frequency and mode by which the Commission can revise the Guidelines pursuant to its statutory mandates. As the Tenth Circuit noted in United States v. Maloid<\/em>, the Supreme Court concluded that \u201cCongress did not intend to handicap the Commission in interpreting and clarifying federal sentencing law.\u201d195<\/a><\/sup>United States v. Maloid, 71 F.4th 795, 803 (10th Cir. 2023) (discussing Stinson v. United States, 508 U.S. 36, 46 (1993)).<\/span> The Commission is better able to dynamically revise federal sentencing policy if it has the flexibility to choose between revising the Guidelines commentary and promulgating Guidelines amendments196<\/a><\/sup>See id.<\/em><\/span> and knows that courts will defer to both modes of sentencing policy. This ability to choose between revising the commentary or revising the Guidelines also advances the incorporation of empirically-backed policies into the Guidelines. For instance, empirical findings based on sentencing data may operate more effectively as a clarification within a commentary rather than a wholesale modification to a Guideline.197<\/a><\/sup>The Supreme Court implied as much in James v. United States, 550 U.S. 192 (2007), overruled on other grounds by <\/em>Johnson v. United States, 576 U.S. 591 (2015). The Court interpreted the career-offender enhancement in \u00a7 4B1.2 of the Guidelines, which is triggered by a predicate \u201ccrime of violence.\u201d James<\/em>, 550 U.S. at 206. The application note to \u00a7 4B1.2 includes inchoate offenses within the definition of \u201ccrime of violence\u201d\u2014a policy that the Court justified because it reflects the Commission\u2019s empirical review of sentencing data and corresponding judgment that inchoate offenses \u201cpose a similar risk of injury as completed offenses.\u201d Id.<\/em><\/span><\/p>\n

Additionally, such empirically-backed policymaking, especially as it incorporates sentencing data, depends on meaningful dialogue between the Commission and courts applying the Guidelines. The Supreme Court in Rita<\/em> explained how this dialogue should operate in practice:<\/p>\n

The sentencing courts, applying the Guidelines in individual cases, may depart (either pursuant to the Guidelines or, since Booker<\/em>, by imposing a non-Guidelines sentence). The judges will set forth their reasons. The courts of appeals will determine the reasonableness of the resulting sentence. The Commission will collect and examine the results. In doing so, it may obtain advice from prosecutors, defenders, law enforcement groups, civil liberties associations, experts in penology, and others. And it can revise the Guidelines accordingly.198<\/a><\/sup>Rita v. United States, 551 U.S. 338, 350 (2007).<\/span><\/p>\n

Courts can thus effectively communicate their disagreements with Guidelines policies through departures. Reflexive deference to the Guidelines commentary better ensures effective use of this mode of communication between the Commission and the courts by encouraging courts to use departures to communicate disagreements with the Guidelines rather than withholdings of deference.<\/p>\n

By contrast, Kisor<\/em> deference would impede the Commission\u2019s ability to regularly review and revise its Guidelines based on sentencing data. Courts who disagree with the policy put forth by a Guidelines commentary could choose simply not to defer to the commentary rather than depart from the Guidelines as interpreted by the commentary. In other words, decisions not to defer to Guidelines commentary could occur under the guise of interpretive disagreements although they are truly based in disagreements with the policy put forth in the Guidelines. To refer back to the Chandler<\/em> example, a court could perhaps agree with the interpretation that a fake gun is a dangerous weapon as defined in U.S.S.G. \u00a7 2A4.1 and \u00a7 2B3.1 but disagree that it presents the same degree of danger to warrant the sentencing increase recommended by the Guidelines.199<\/a><\/sup>See <\/em>discussion supra<\/em>.<\/span> It would be improper in this circumstance, however, for the court not to defer to the commentary because the disagreement is not based in legal interpretation. On the other hand, courts that do depart from the Guidelines may do so without first consulting the commentary, which sheds light on the proper meaning of the Guidelines. Thus, under Kisor<\/em>, the Commission, when reviewing sentencing decisions, would have to disentangle whether the rate of departures from the Guidelines reflects the true extent of disagreement with the Guidelines and parse out whether departures from the Guidelines were made with Guidelines commentary in mind.200<\/a><\/sup>The SRA expressly requires district court judges to submit their sentencing decisions to the Commission including a \u201cwritten statement of reasons for the sentence imposed.\u201d The Act expressly requires this statement to explain any departures but is silent on deference decisions. See<\/em> 28 U.S.C. \u00a7 994(w)(1)(B).<\/span> Kisor<\/em> deference would thus add an extra layer of complication to this analysis, which involves an already large and granular body of sentencing data. This would hamper the Commission\u2019s ability to fulfill its mandate to review sentencing data with the goal of revising sentencing policy.<\/p>\n

As the Supreme Court argued in Stinson<\/em>, the SRA also contemplates that the Guidelines commentary has controlling weight.201<\/a><\/sup>See <\/em>Stinson v. United States, 508 U.S. 36, 46 (1993).<\/span> For one, the SRA explicitly requires the Commission to promulgate policy statements alongside the Guidelines provisions \u201cregarding application of the guidelines.\u201d202<\/a><\/sup>20 U.S.C. \u00a7 994(a)(2).<\/span> In \u00a7 1B1.7 of the Guidelines, the Commission provides that even unlabeled portions of the Guidelines Manual \u201care to be construed as commentary and thus have the force of policy statements.\u201d203<\/a><\/sup>U.S.S.G. \u00a7 1B1.7.<\/span> Pursuant to 18 U.S.C. \u00a7 3553(a), judges must consider specified sentencing factors and calculate (but not necessarily adhere to) sentencing ranges as determined by the Guidelines and policy statements.204<\/a><\/sup>See<\/em> United States v. Booker, 543 U.S. 220, 245 (2005); Gall v. United States, 552 U.S. 38, 49\u201350 (2007).<\/span> While one could give weight to the fact that \u00a7 3553(a) explicitly mentions Guidelines provisions and policy statements but not Guidelines commentary,205<\/a><\/sup>See <\/em>Walker, supra <\/em>note 160, at 2841.<\/span> a perfectly reasonable interpretation is that the provision references Guidelines as accompanied<\/em> by their corresponding commentary.206<\/a><\/sup>This is consistent with the fact that the vast majority of Guidelines commentary accompanies specific Guidelines whereas policy statements typically appear as standalone provisions. See generally <\/em>GUIDELINES, supra<\/em> note 2.<\/span> In fact, in \u00a7 3553(b)\u2014later struck down in Booker<\/em> for having mandatory language207<\/a><\/sup>Booker<\/em>, 543 U.S. at 245.<\/span>\u2014the SRA explicitly envisioned a key role played by the Guidelines commentary. Section 3553(b)(1) instructed courts to \u201cconsider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission\u201d before departing from the Guidelines\u2019 recommended ranges.208<\/a><\/sup>18 U.S.C. \u00a7 3553(b)(1). To be certain, this provision does not require <\/em>courts to consider commentary before departing from a recommended Guidelines-calculated sentence; however, it does put Guidelines, policy statements, and commentary on an equal playing field in terms of their interpretive importance within decisions to depart from the Guidelines.<\/span> Thus, Congress considered the commentary essential to understanding the final policy recommendations put forth in the Guidelines. There is no evidence that Booker<\/em> intended to alter this analysis.<\/p>\n

The SRA also envisions many discrete objectives for the Guidelines which have necessitated the creation of the Guidelines Manual comprised of the Guidelines, policy statements, and commentary as one interrelated document. As the Fourth Circuit in United States v. Moses<\/em> explained:<\/p>\n

[T]o address the multifarious circumstances that can be relevant to each individual defendant and statutory sentencing objectives, . . . the Guidelines Manual is structured with interrelated layers of explanation consisting of Guidelines, policy statements, and official commentary. . . . [T]he policy statements and commentary are especially meaningful in understanding the Guidelines, regardless of whether any Guideline is ambiguous.209<\/a><\/sup>United States v. Moses, 23 F.4th 347, 354 (4th Cir. 2022).<\/span><\/p>\n

Thus, as the Stinson<\/em> Court wrote, \u201camendments to guidelines provisions are [just] one method of incorporating revisions\u201d to the Guidelines.210<\/a><\/sup>Stinson v. United States, 508 U.S. 36, 46 (1993).<\/span> However, \u201canother method open to the Commission is amendment of the commentary.\u201d211<\/a><\/sup>Id.<\/em><\/span> This is because the SRA supports a presumption that a Guidelines commentary represents the best indication of how that Guideline should operate in practice and in a manner consistent with the Guidelines Manual in totality.212<\/a><\/sup>See<\/em> id.<\/em> at 45.<\/span><\/p>\n

3. Reflexive Deference Is Not Inconsistent with the Supreme Court\u2019s Shift Away from Deference to Administrative Agencies<\/em><\/h6>\n

Objectors may argue that the Supreme Court has recently shifted away<\/em> from deference to agency interpretations of law, making reflexive deference to Guidelines commentary inappropriate. Loper Bright Enterprises<\/em> is apparently revolutionary for its forceful assertion that it is the province of courts, not agencies, to interpret the law.213<\/a><\/sup>See <\/em>Loper Bright Enters. v. Raimondo, 603 U.S. 369, 385 (2024).<\/span> This invites the question of why the Commission deserves special treatment in the form of reflexive deference to the Guidelines commentary while other administrative agencies are no longer presumed to have this authority. Deference to the Sentencing Commission to interpret Guidelines still makes sense, first, because Guidelines commentary are meaningfully distinct from other agency interpretations, and, second, there are independent reasons to presume the Commission\u2019s authority to interpret the Guidelines at the first instance.<\/p>\n

First<\/em>, Guidelines commentary serve more than purely interpretational purposes. Agency interpretations, on the one hand, conceivably intrude on the responsibility of courts to interpret the law. Commentary, however, provides concrete instructions for how Guidelines are to be applied \u201cin a manner most \u2018consistent with the Guidelines Manual as a whole.\u2019\u201d214<\/a><\/sup>United States v. Moses, 23 F.4th 347, 356 (4th Cir. 2022) (quoting Stinson v. United States, 508 U.S. 36, 45 (1993)); see also <\/em>U.S.S.G. \u00a7 1B1.7. The Stinson<\/em> Court also explained that this function of commentary operates even when Guidelines are unambiguous. 508 U.S. at 36.<\/span> The commentary can also instruct courts on when departures from the Guidelines are advisable and provide background information as to the rationales underlying specific Guidelines.215<\/a><\/sup>See<\/em> U.S.S.G. \u00a7 1B1.7.<\/span> Given the wide array of functions the commentary serves, it would be unwise to prohibit deference to the commentary unless the Guidelines reach a threshold level of ambiguity, as Kisor<\/em> instructs.216<\/a><\/sup>See <\/em>Kisor v. Wilkie, 588 U.S. 558, 566 (2019).<\/span> This would not only impede the operational function of the commentary, but would also limit the certainty and consistency with which judges apply the Guidelines.<\/p>\n

Second<\/em>, the Commission\u2019s unique relationship with the courts, Congress, and the public counsel in favor of presuming its authority to interpret the Guidelines. As the Supreme Court itself noted, the Commission is \u201ca peculiar institution within the framework of our Government,\u201d having \u201can unusual hybrid in structure and authority.\u201d217<\/a><\/sup>Mistretta v. United States, 488 U.S. 361, 384, 412 (1989).<\/span> For one, the Commission is housed within the judicial branch.218<\/a><\/sup>See <\/em>28 U.S.C. \u00a7 991(a).<\/span> And, as the Supreme Court explained, criminal sentencing is both a \u201cpeculiarly shared responsibility among the Branches of Government\u201d and one which has historically been placed within the judiciary\u2019s \u201cspecial authority.\u201d219<\/a><\/sup>Mistretta<\/em>, 488 U.S. at 390.<\/span> Thus, presuming the authority of the Commission to interpret its Guidelines while also empowering courts to depart from the Guidelines is perfectly consistent with the judiciary\u2019s special responsibility in the domain of criminal sentencing. The Commission also receives close supervision from Congress, which has engaged its shared responsibility in criminal sentencing. This supervision arguably exceeds Congress\u2019s oversight of other agencies,220<\/a><\/sup>See supra <\/em>Part III.C.1; United States v. Maloid,<\/em> 71 F.4th 795, 807 (10th Cir. 2023).<\/span> which counsels in favor of presuming that Congress intends the Commission to resolve ambiguities in the Guidelines. Thus, these distinct features of the Commission put into question the appropriateness of transferring all deference doctrines from administrative law to the Sentencing Commission context.<\/p>\n

B. Reflexive Deference Is Further Justified by the Advisory Nature of the Guidelines<\/em><\/h5>\n

Additionally, reflexive deference is more justified given the advisory nature of the Guidelines. The advisory nature of the Guidelines adequately addresses two related objections to reflexive deference in the sentencing context: (1) that reflexive deference entrenches overly punitive Guidelines and (2) that reflexive deference violates the APA.<\/p>\n

1. Advisory Guidelines Permit Departure from Overly Punitive Guidelines<\/em><\/h6>\n

Many commentators advocating for less deference to the Guidelines commentary are disquieted by the fact that deference to expansive commentary can have the result of increasing a defendant\u2019s criminal punishment.221<\/a><\/sup>See supra<\/em> Part I.B.1.<\/span> In United States v. Nasir<\/em>, Judge Bibas articulated this concern in his concurrence, arguing that \u201c[t]here is no compelling reason to defer to a Guidelines comment that is harsher than the text.\u201d222<\/a><\/sup>United States v. Nasir, 17 F.4th 459, 474 (3d Cir. 2021) (Bibas, J., concurring).<\/span> This concern is perfectly reasonable. However, it fails to recognize that the advisory nature of the Guidelines already furnishes the remedy.<\/p>\n

Before Booker<\/em> held that the Guidelines are not binding, the SRA provided for departures in \u201cspecific, limited cases.\u201d223<\/a><\/sup>United States v. Booker, 543 U.S. 220, 221 (2005).<\/span> Specifically, it permitted a sentencing court to depart from the Guidelines if it \u201cf[ound] that there exist[ed] 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 that should result in a sentence different from that described.\u201d224<\/a><\/sup>18 U.S.C. \u00a7 3553(b)(1).<\/span> After Booker<\/em>, the Supreme Court confirmed that judges can depart from Guidelines-calculated sentence ranges even based on reasons that are not \u201cextraordinary,\u201d225<\/a><\/sup>Gall v. United States, 552 U.S. 38, 47 (2007).<\/span> or on the basis of policy disagreements with the Guidelines.226<\/a><\/sup>See <\/em>Kimbrough v. United States, 552 U.S. 85, 101 (2007).<\/span> This leaves plenty of room for judges to depart from Guidelines-calculated sentence ranges based on commentary that is overly harsh. After conducting its review of these departures, the Commission will adjust its sentencing policy accordingly.227<\/a><\/sup>See supra <\/em>Part IV.A.2. <\/span> Thus, if the sentencing system is operating as it should be, sentencing decisions that defer to the Guidelines commentary and depart when warranted should actually reduce the number of incidences where the Guidelines or Guidelines commentary are overly harsh, holding constant other variables. Though the normative demerits of the Guidelines are not the core focus of this Note, it is widely contended that mandatory minimums in sentencing statutes, prosecutorial discretion to charge crimes corresponding with Guidelines that recommend higher sentencing, and political influence resulting in overly harsh Guidelines have all led to the rise in criminal punishment at the federal level.228<\/a><\/sup>See e.g.<\/em>, Hon. Lynn Adelman, How Congress, the U.S. Sentencing Commission and Federal Judges Contribute to Mass Incarceration<\/em>, AMERICAN CONSTITUTION SOCIETY (Jan. 2023), https:\/\/www.acslaw.org\/expertforum\/how-congress-the-u-s-sentencing-commission-and-federal-judges-contribute-to-mass-incarceration\/ [https:\/\/perma.cc\/L6UC-FRLY]; Crystal S. Yang, Have Interjudge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence From<\/em> Booker, 89 N.Y.U. L. REV. 1268, 1309, 1323\u201326 (2014).<\/span> Intentional departures are, thus, just one way that judges can counteract this trend, and they are more consistent with the evolutionary nature of the Guidelines than are withholdings of deference to the commentary.<\/p>\n

In line with the advisory nature of the Guidelines, district court judges can and do take advantage of their ability to depart from the Guidelines. Commentators who advocate for less deference to the Guidelines commentary typically make similar arguments as did Judge Bibas in United States v.<\/em> Nasir<\/em>: because Guidelines \u201cexert a law-like gravitational pull on sentences\u201d it is important not to defer reflexively to expansive commentary.229<\/a><\/sup>United States v. Nasir, 17 F.4th 459, 474 (3d Cir. 2021) (Bibas, J., concurring); see also<\/em> Steininger, supra<\/em> note 159, at 2293 (arguing the same); Acton, supra<\/em> note 108, at 401 (same); Walker, supra <\/em>note 160, at 2819 (surmising that judges might be reluctant to depart from the Guidelines because of their discomfort with exercising their own discretion and accustomedness to relying on the Guidelines).<\/span> To an extent, it is true that \u201cGuidelines and their commentary remain the \u2018lodestone\u2019 of federal sentencing,\u201d230<\/a><\/sup>United States v. Havis, 907 F.3d 439, 444 (6th Cir. 2018), vacated by reh\u2019g en banc<\/em>, 921 F.3d 628 (6th Cir. 2019).<\/span> because all sentencing decisions must begin with a proper calculation of the Guidelines.231<\/a><\/sup>See<\/em> Gall v. United States, 552 U.S. 38, 49 (2007).<\/span> Some level of \u201canchoring bias\u201d may also be at play, causing judges to lean on calculated Guidelines ranges rather than exercise their own sentencing discretion.232<\/a><\/sup>\u201cAnchoring bias\u201d is a psychological phenomenon that causes individuals to use numbers previously disclosed to them as anchors for their decisions. In the sentencing context, judges may subconsciously base sentencing decisions on Guidelines-calculated ranges by using them as heuristics instead of exercising their own discretion. See <\/em>Mark W. Bennett, Confronting Cognitive \u201cAnchoring Effect\u201d and \u201cBlind Spot\u201d Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw<\/em>, 104 J. CRIM. L. AND CRIMINOLOGY 489, 489, 523\u201329 (2014). <\/span> Nonetheless, Booker<\/em> makes clear that not all sentencing decisions need to sentence defendants within the Guidelines-calculated ranges.233<\/a><\/sup>See <\/em>United States v. Booker, 543 U.S. 220, 259 (2005); Rita v. United States, 551 U.S. 338, 361 (2007) (Stevens, J., concurring); Koon v. United States, 518 U.S. 81, 91 (1996) (holding that an abuse-of-discretion standard applies to sentencing departures).<\/span> Moreover, by excising the mandatory provisions of the SRA, Booker<\/em> implicitly reaffirmed the abuse of discretion standard that the Court had previously held applied to sentencing departures permitted by the Guidelines.234<\/a><\/sup>See Booker<\/em>, 543 U.S. at 259; Koon<\/em>, 518 U.S. at 91.<\/span> This standard, notably, is more deferential to district courts than the de novo standard by which courts of appeals review decisions to defer to Guidelines commentary.235<\/a><\/sup>Compare <\/em>United States v. Dupree, 57 F.4th 1269, 1272-80 (11th Cir. 2023) (en banc) (conducting full statutory interpretation-like analysis to review application of Guideline and commentary by district court), with <\/em>United States v. Canova, 412 F.3d 331, 335 (2d Cir. 2005) (explaining that Booker<\/em> modified standard of review for departures such that only \u201ca significant error in the calculation or construction of the Guidelines may preclude affirmance\u201d).<\/span> Additionally, while the Supreme Court held that courts of appeals may apply a presumption of reasonableness to sentencing decisions within a Guidelines-calculated sentencing range,236<\/a><\/sup>See Rita<\/em>, 551 U.S. at 338.<\/span> sentencing decisions outside of a Guidelines-recommended range cannot be considered presumptively un<\/em>reasonable.237<\/a><\/sup>See<\/em> Gall v. United States, 552 U.S. 38, 51 (2007).<\/span> Thus, courts of appeals are largely obliged to respect a district judge\u2019s discretionary decision to depart from the Guidelines.<\/p>\n

Empirical data also demonstrates that judges have taken advantage of their ability to depart from the Guidelines post-Booker<\/em>, which counterbalances concerns of overly punitive Guidelines. One study demonstrates that inter-judge disparity in sentencing doubled after Booker<\/em>.238<\/a><\/sup>See <\/em>Yang, supra <\/em>note 228, at 1268.<\/span> The majority of these departures were below rather than above the recommended Guidelines-calculated sentencing ranges.239<\/a><\/sup>See id.<\/em> at 1309, 1314. While Yang finds that above-range departures occur in roughly two percent of cases, below-range departures occur in forty percent of cases. See id.<\/em><\/span> This data overall is consistent with the conclusion that the advisory nature of the Guidelines does result in greater departures from the Guidelines, reducing the concerns associated with reflexive deference to the commentary. Additionally, as noted by Judge Bibas in Nasir<\/em>, the Commission itself reported that, in the 2019 fiscal year, \u201c75% of offenders received sentences that were either within the Guidelines range or justified by a Guidelines ground for departure.\u201d240<\/a><\/sup>United States v. Nasir, 17 F.4th 459, 474 (3d Cir. 2021) (Bibas, J., concurring) (citing U.S. SENTENCING COMM\u2019N, 2019 Annual Report and Sourcebook of Federal Sentencing Statistics<\/em> 8). This figure was 66.9% in the 2023 fiscal year. U.S. SENTENCING COMM\u2019N, 2023 Sourcebook of Federal Sentencing Statistics<\/em> 60.<\/span> A necessary corollary to this finding is that twenty-five percent of sentences were not within the range or justified by a Guidelines ground of departure. While this rate of departures may not seem significant, it is a twenty-five percent higher rate of departures than would have been justified pre-Booker<\/em>. Ultimately, a high rate of compliance with the Guidelines means that the Commission is fulfilling its mandate to increase the certainty and fairness of sentencing.241<\/a><\/sup>See supra<\/em> Part I. <\/span> To counterbalance this, a healthy rate of noncompliance is also good\u2014it means the Commission can better fulfill its mandate to revise the Guidelines based on criminal sentencing data from the federal courts.242<\/a><\/sup>See supra<\/em> Part IV.B.2.<\/span> The balance between both reflexive deference and departures should, thus, permit the Guidelines to both reduce sentencing disparities and evolve according to actual sentencing data.243<\/a><\/sup>See<\/em> supra<\/em> Part II.A.1.<\/span><\/p>\n

2. Advisory Guidelines Are Not Subject to the Administrative Procedure Act<\/em><\/h6>\n

Objectors may also argue that upholding reflexive deference to the Guidelines commentary would violate the APA. Judges and commentators are concerned that, by promulgating commentary that automatically gets approval from reviewing courts, the Commission can effectively amend the Guidelines without utilizing the APA\u2019s \u00a7 553 rulemaking procedures,244<\/a><\/sup>See, e.g.<\/em>, Acton, supra<\/em> note 108; Steininger, supra<\/em> note 159; United States v. Nasir, 17 F.4th 459, 471 (3d Cir. 2021); United States v. Riccardi, 989 F.3d 476, 487 (6th Cir. 2021).<\/span> which require agencies to promulgate legislative rules through notice and comment.245<\/a><\/sup>See<\/em> 5 U.S.C. \u00a7 553.<\/span> This argument has the same central underlying concern as caselaw dealing with the propriety of interpretive rules,246<\/a><\/sup>See, e.g.<\/em>, American Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1107 (D.C. Cir. 1993); Hoctor v. U.S. Dep\u2019t of Agric., 82 F.3d 165, 171 (7th Cir. 1996).<\/span> which are exempted under the APA\u2019s rulemaking procedures.247<\/a><\/sup>See<\/em> 5 U.S.C. \u00a7 553(b)(4)(B); see also Riccardi<\/em>, 989 F.3d at 487 (arguing that caselaw distinguishing between interpretive rules and legislative rules \u201creinforced\u201d its own holding regarding Guidelines commentary).<\/span> As courts have argued, interpretive rules that substantively expand upon the regulations they interpret are effectively legislative rules with the force of law; yet because agencies forego the APA\u2019s rulemaking procedures by issuing such expansive interpretive rules, this raises rule of law concerns.248<\/a><\/sup>See American Mining Cong.<\/em>, 995 F.2d at 1112.<\/span><\/p>\n

However, in the sentencing context, this objection does not cleanly apply, because neither Guidelines nor Guidelines commentary serve as bases for enforcement actions\u2014rather, they serve as advisory benchmarks for criminal punishment post-conviction.249<\/a><\/sup>U.S.S.G. \u00a7 1A1.1, Background.<\/span> Given the difference in procedural requirements between the Guidelines and commentary, there may indeed be a \u201cclear legal distinction\u201d between the two.250<\/a><\/sup>Acton, supra<\/em> note 108, at 392.<\/span> However, it is not clear why this distinction should necessarily require courts to either impose strict procedural requirements on the Guidelines commentary or not defer to them in the context of federal sentencing. The same rule of law concern underlying the distinction between legislative rules and interpretive rules simply does not extend to the Guidelines and Guidelines commentary due to their advisory nature.<\/p>\n

The Commission\u2019s unique attributes also temper the rule of law concern with the Commission\u2019s apparent ability to circumvent the APA\u2019s rulemaking procedures, then receive deference under Stinson<\/em>. For one, as the Eleventh Circuit argued in Maloid<\/em>, the Commission does not make \u201cbroad-ranging policy choices\u201d like most administrative agencies, but rather \u201cguide[s] federal judges through the complex process of sentencing.\u201d251<\/a><\/sup>United States v. Maloid, 71 F.4th 795, 807 (10th Cir. 2023) (citing 28 U.S.C. 991(b)(1)(B)) (a central purpose of the Commission is to \u201cprovide certainty and fairness in meeting the purposes of sentencing\u201d). The Fourth Circuit Court of Appeals in United States v. Moses<\/em> also emphasized this point in asserting that the \u201cpurposes and roles\u201d of the Sentencing Commission and executive agencies are distinct. 23 F.4th at 355. While the Commission \u201cis judicial in nature,\u201d and its Guidelines \u201c[are] directed at providing guidance to district judges,\u201d executive agencies \u201cregulate the broad range of people covered by the particular agency\u2019s jurisdiction, and they do so without the express authorization of Congress.\u201d Id.<\/em><\/span> The Commission is meant to establish sentencing policies, not enforce the laws against the public; thus, there is less urgency for courts to police the bounds of the Commission\u2019s discretionary authority through procedural guardrails. Additionally, unlike most administrative agencies, the Commission\u2019s entire substantive authority is limited to the Guidelines Manual.252<\/a><\/sup>Moses<\/em>, 23 F.4th at 355.<\/span> As the Fourth Circuit Court of Appeals stated in Moses<\/em>, most administrative agencies have a panoply of avenues through which they can regulate, including \u201cletters, opinions, press releases, and legal briefs.\u201d253<\/a><\/sup>Id.<\/em><\/span> The Commission, on the other hand, only has three options by which it can promulgate policy: Guidelines, commentary, and policy statements.254<\/a><\/sup>See <\/em>U.S.S.G. \u00a7 1A3.1.<\/span> It is, thus, reasonable to assume that Congress gave the Commission more flexibility to choose how it promulgates sentencing policy, especially given its mandate to dynamically review and revise the Guidelines.255<\/a><\/sup>See<\/em> 28 U.S.C. \u00a7 994(o).<\/span> To this point, Stinson<\/em> effectively interpreted the SRA to enable the Commission to amend the Guidelines via commentary.256<\/a><\/sup>See <\/em>Stinson v. United States, 508 U.S. 36, 46 (1993).<\/span> By holding that amended commentary is \u201cbinding on the federal courts even though it is not reviewed by Congress,\u201d and so long as \u201cthe guideline which the commentary interprets will bear [its] construction,\u201d257<\/a><\/sup>Id.<\/em><\/span> the Court has given the Commission substantial leeway to issue commentary as a means of policymaking.<\/p>\n

C. Reaffirming <\/em>Stinson\u2019s Reflexive Deference Upholds Principles of Stare Decisis, Because <\/em>Stinson Was Not Wrongly Decided<\/em><\/h5>\n

Reaffirming Stinson<\/em> on improved grounds is the preferable approach, because Stinson <\/em>was not wrongly decided.258<\/a><\/sup>The Supreme Court could possibly extend Kisor <\/em>to the Guidelines commentary by severely limiting the scope of Stinson<\/em> deference rather than fully overruling Stinson<\/em>. However, this seems unlikely because, as will be discussed, Stinson<\/em> deference is even more deferential to the Guidelines commentary than Seminole Rock<\/em>\/Auer<\/em> deference was to agency interpretations of their regulations. See<\/em> Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). It would, thus, be difficult for the Court to reframe Kisor<\/em> deference as a more limited version of Stinson <\/em>deference. <\/span> Stare decisis demands that courts must have \u201c\u2018special justification\u2019\u201d to overturn a case\u2014meaning something more than \u201can argument that the precedent was wrongly decided.\u201d259<\/a><\/sup>Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014).<\/span> Thus, the threshold for overturning Stinson<\/em> has not been met.<\/p>\n

There are several reasons to believe that Stinson<\/em> was not wrongly decided despite Kisor<\/em>\u2019s reasoning. Although the Stinson<\/em> Court analogized Guidelines commentary to agency interpretations of their regulations, its holding did not rest solely on this comparison. This counsels against assuming the incorrectness of Stinson<\/em> based solely on Kisor<\/em>\u2019s reasoning. For one, Stinson<\/em>\u2019s holding rested in considerable part on the Court\u2019s interpretation of the SRA\u2014particularly its conclusion that the Act contemplates the commentary as meriting controlling weight.260<\/a><\/sup>See Stinson<\/em>, 508 U.S. at 45\u201346; see also<\/em> supra <\/em>Part II.A.1. <\/span> Stinson<\/em> deference is also more expansive than Seminole Rock<\/em>\/Auer<\/em> deference in ways that meaningfully enhance the Commission\u2019s central mandates. While Seminole Rock<\/em>\/Auer<\/em> deference only applies when the meaning of a regulation is in doubt,261<\/a><\/sup>See Seminole Rock<\/em>, 325 U.S. at 414.<\/span> Stinson <\/em>deference applies even to commentary that accompanies unambiguous guidelines,262<\/a><\/sup>See Stinson<\/em>, 508 U.S. at 44 (describing how commentary \u201cprovides concrete guidance as to how even unambiguous guidelines are to be applied in practice\u201d).<\/span> and even if deference would overrule \u201cprior judicial constructions\u201d of the Guidelines they interpret.263<\/a><\/sup>United States v. Dupree, 57 F.4th 1269, 1285 (11th Cir. 2023) (en banc) (Grant, J., concurring) (quoting Stinson<\/em>, 588 U.S. at 46).<\/span> The Stinson<\/em> Court further explained that amendments to Guidelines commentary can authoritatively \u201ceffect . . . change[s] in [the] interpretation of the overall Guidelines.\u201d264<\/a><\/sup>Id.<\/em> <\/span> These features of Stinson<\/em> deference operate in ways that go \u201cbeyond ordinary principles of administrative law.\u201d265<\/a><\/sup>Id.<\/em> Judge Grant goes on to describe how the Supreme Court \u201chas never held that an agency\u2019s reinterpretation of its own legislative rule can override a past judicial construction of that rule.\u201d Id.<\/em> <\/span><\/p>\n

One counterargument against the correctness of Stinson <\/em>is that it was decided during a time when the Guidelines had the force of law, which heightened the risk that the Commission could promulgate new law through commentary. As the Kisor <\/em>Court explained, deferring to agency interpretations even when a binding regulation is unambiguous \u201cwould \u2018permit the agency, under the guise of interpreting a regulation, to create de facto<\/em> a new regulation.\u2019\u201d266<\/a><\/sup>Kisor v. Wilkie, 588 U.S. 558, 575 (2019) (quoting Christensen v. Harris County, 529 U.S. 576, 588 (2000)).<\/span> Although Auer<\/em> deference does not \u201cgo that far,\u201d267<\/a><\/sup>Id.<\/em><\/span> the Supreme Court in Stinson<\/em> could have very well intended the Commission to have the ability to make amendments to the Guidelines via the commentary.268<\/a><\/sup>Cf. infra<\/em> Part I.A (discussing why deference in the federal criminal sentencing context does not raise the same constitutional concerns surrounding deference in administrative law due to the distinct features of the Commission and Guidelines).<\/span> As discussed, this is consistent with the Commission\u2019s mandate to regularly revise the Guidelines, thereby meriting a unique level of discretion.<\/p>\n

A less compelling counterargument rests on the fact that developments in administrative and federal sentencing law render Stinson<\/em> a \u201cdoctrinal dinosaur.\u201d269<\/a><\/sup>Kisor<\/em>, 588 U.S. at 588 (quoting Kimble v. Marvel Ent., LLC, 576 U.S. 446, 459 (2015)). <\/span> This argument points out that the Stinson<\/em> Court drew only one meaningful distinction between the Guidelines and agency regulations, which is that Congress is more involved in the promulgation of Guidelines.270<\/a><\/sup>See <\/em>Acton, supra<\/em> note 108, at 360.<\/span> This distinction has been used by courts to justify a heightened deference to the commentary.271<\/a><\/sup>See, e.g.<\/em>, United States v. Maloid, 71 F.4th 795, 812 (10th Cir. 2023) (arguing that because \u201cCongress retains substantial control over sentencing matters and the Guidelines Manual,\u201d it can easily \u201crevoke or amend\u201d a disfavored commentary in the manual at any time).<\/span> But, since Stinson <\/em>was decided, Congress passed the Congressional Review Act,272<\/a><\/sup>See<\/em> MAEVE P. CAREY & CHRISTOPHER M. DAVIS, CONG. RSCH. SERV., IF10023, THE CONGRESSIONAL REVIEW ACT (CRA): A BRIEF OVERVIEW 1 (2023), https:\/\/www.congress.gov\/crs-product\/IF10023 [https:\/\/perma.cc\/E9ZL-XLCT].<\/span> which contemplates very similar Congressional involvement with respect to other agency regulations.273<\/a><\/sup>The Congressional Review Act allows Congress time to review and accept, reject, or modify agency regulations, much in the same manner as it can the Guidelines. Compare<\/em> 5 U.S.C. \u00a7\u00a7 801, 802, with <\/em>20 U.S.C. \u00a7 994(p).<\/span> This argument is not compelling because Stinson<\/em>\u2019s holding did not turn on this distinction between Guidelines and agency regulations\u2014rather, the Stinson<\/em> Court bolstered its reasoning by drawing an analogy between the two.274<\/a><\/sup>See <\/em>Stinson v. United States, 508 U.S. 36, 44 (1993).<\/span> Although the relationship between Congress and the Commission was not central to Stinson<\/em>\u2019s holding, it continues to support an argument in favor of reflexive deference to the commentary.<\/p>\n

V. Counterarguments<\/span><\/h4>\n

Given that the Supreme Court has increasingly disfavored deference to administrative agencies regarding their legal interpretations, there are predictable and plausible objections to a reflexive deference framework for the Guidelines commentary. The two strongest likely objections are as follows: first, reflexive deference threatens the separation of powers and, second, reflexive deference frustrates the application of the rule of lenity. This Part addresses each of these arguments in turn and demonstrates why they do not apply in the Sentencing Commission context.<\/p>\n

Reflexive Deference Does Not Violate the Separation of Powers<\/em><\/p>\n

A likely objection to giving reflexive deference to Guidelines commentary is that it would threaten the separation of powers by authorizing the Commission\u2019s authority to both promulgate laws and interpret them. However, this objection has not only already been addressed by the Supreme Court, but its concomitant concern that reflexive deference permits the Commission to augment its own power is doubtful.<\/p>\n

Professor John Manning most famously articulated the separation of powers argument against Auer <\/em>deference by arguing that it gives agencies binding authority over both lawmaking and legal interpretation.275<\/a><\/sup>See <\/em>John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules<\/em>, 96 COLUM. L. REV. 612, 654 (1996). Similarly, in Decker v. Northwest Environmental Defense Center<\/em>, 568 U.S. 597 (2013), the late Justice Scalia ironically expressed regret over Auer<\/em> deference, a creation of his own judicial making, because it violates the principle of the separation of powers by placing \u201cthe power to write a law and the power to interpret it . . . in the same hands.\u201d Id.<\/em> at 619 (Scalia, J., concurring in part and dissenting in part).<\/span> When an agency promulgates regulations, it exercises lawmaking authority, and when it interprets its regulations, it exercises interpretive authority. Thus, as Justice Gorsuch explained in his Kisor <\/em>concurrence, Auer <\/em>deference \u201cdoes not limit<\/em> the scope of the judicial power; instead, it seeks to coopt<\/em> the judicial power.\u201d276<\/a><\/sup>Kisor v. Wilkie, 588 U.S. 558, 617 (2019) (Gorsuch, J., concurring).<\/span> As the argument goes, when an agency promulgates a regulation knowing that its later interpretations of the regulation will receive deference in court, it is incentivized to promulgate vague regulations that it can later interpret expansively to give itself more power.277<\/a><\/sup>See <\/em>Manning, supra<\/em> note 275, at 647\u201360. <\/span> In effect, the agency self-delegates rulemaking authority to be exercised via interpretive rules.278<\/a><\/sup>See id.<\/em><\/span> This, however, results in more unpredictable and arbitrary regulations, which, in turn, threatens the rule of law.279<\/a><\/sup>See id.<\/em> at 654\u201356.<\/span><\/p>\n

This objection, based in separation of powers principles, is misguided as applied to the Guidelines and commentary. First<\/em>, the concern that reflexive deference gives agencies binding authority over both lawmaking and legal interpretations does not apply to the Sentencing Guidelines. Starting with the Commission\u2019s lawmaking powers, the Guidelines are not binding on courts post-Booker<\/em>, making it questionable whether the Commission can even be said to have lawmaking powers. Even when the Guidelines were binding, however, the Supreme Court in Mistretta <\/em>held that the Commission does not violate the separation of powers principle.280<\/a><\/sup>See <\/em>Mistretta v. United States, 488 U.S. 361, 380\u2013412 (1989).<\/span> While the Commission has significant discretion within its mandate, its authority does not aggrandize the powers of the judicial branch.281<\/a><\/sup>See id.<\/em> at 395.<\/span> Rather, as mentioned, the Commission\u2019s power of \u201cjudicial rulemaking\u201d operates within a \u201ctwilight area\u201d of responsibilities that can be shared between the branches of government.282<\/a><\/sup>Id.<\/em> at 386.<\/span> Some courts have even characterized federal criminal sentencing as a function that traditionally \u201cfall[s] uniquely in the Judiciary\u2019s purview.\u201d283<\/a><\/sup>See, e.g.<\/em>, United States v. Maloid, 71 F.4th 795, 812 (10th Cir. 2023).<\/span> Thus, the Commission\u2019s authority to promulgate substantive sentencing Guidelines while being housed in the judicial branch is consistent with the separation of powers principle. As for the Commission\u2019s interpretational power, because the Guidelines are not binding on courts, the Guidelines commentary is also not binding, even if courts reflexively defer to the commentary. In fact, the central thrust of this Note has aimed to demonstrate that courts that substantively disagree with the Guidelines commentary can choose to depart from the Guidelines wholesale rather than not defer to the Guidelines commentary. However, even if the Guidelines were binding and courts reflexively deferred to Guidelines commentary, the fact that the Commission is housed within the judicial branch complicates the question of whether the Commission\u2019s interpretational authority violates the separation of powers. Even if rulemaking authority is not clearly a judicial function,284<\/a><\/sup>See Mistretta<\/em>, 488 U.S. at 386.<\/span> interpretive authority certainly is.285<\/a><\/sup>See <\/em>Loper Bright Enters. v. Raimondo, 603 U.S. 369, 384 (2024) (reasserting that \u201cthe final \u2018interpretation of the laws\u2019 [is] \u2018the proper and peculiar province of the courts.\u2019\u201d) (quoting THE FEDERALIST NO. 78 (A. Hamilton)).<\/span><\/p>\n

Second<\/em>, there are reasons to doubt the applicability of the self-delegation argument to the Commission. In general, agencies have countervailing incentives to draft clear rather than vague regulations, even if that limits their own flexibility. For one, because it is more difficult to undo legislative rules through formal rulemaking procedures than it is to undo interpretive rules exempted from formal rulemaking procedures, agencies that want to preserve their rules across administrations are incentivized to issue clearer legislative rules.286<\/a><\/sup>See <\/em>Matthew C. Stephenson & Miri Pogoriler, Seminole Rock\u2019s Domain<\/em>, 79 GEO. WASH. L. REV. 1449, 1464 n.52 (2011); see also <\/em>Cass R. Sunstein and Adrian Vermeule, The Unbearable Rightness of <\/em>Auer, 84 U. CHI. L. REV. 297, 309 (2017).<\/span> Additionally, as the majority in Kisor<\/em> reasoned, \u201c\u2018[r]egulators want their regulations to be effective, and clarity promotes compliance.\u2019\u201d287<\/a><\/sup>Kisor v. Wilkie, 588 U.S. 558, 585 (2019) (quoting Brief for Administrative Law Scholars as Amici Curiae <\/em>at 18\u201319, Kisor v. Wilkie, 588 U.S. 558 (2019) (No. 18\u201315)).<\/span> When it comes to the Commission, there is an additional reason to believe that it would not promulgate vague Guidelines to give itself more interpretive leeway. Imprecise Guidelines would defeat a central purpose of the Commission to \u201c\u2018provide certainty and fairness in meeting the purposes of sentencing.\u2019\u201d288<\/a><\/sup>Maloid<\/em>, 71 F.4th at 807 (quoting 28 U.S.C. \u00a7 991(b)(1)(B)).<\/span> Thus, while the Guidelines must be general enough to facilitate their \u201capplication to the many varied facts and circumstances presented in the sentencing process,\u201d289<\/a><\/sup>United States v. Moses, 23 F.4th 347, 356 (4th Cir. 2022) (quoting United States v. Allen, 909 F.3d 671, 674 (4th Cir. 2018)).<\/span> their central purpose is to be clear beyond simply being effective.<\/p>\n

A. Reflexive Deference Is Not Inconsistent with the Rule of Lenity<\/em><\/h5>\n

Finally, an additional likely objection to upholding reflexive deference to the Guidelines commentary is that it improperly interferes with the operation of the rule of lenity. As Judge Bibas\u2019s dissent in Chandler<\/em> demonstrates, the rule of lenity and deference exist in direct tension with one another by requiring courts to choose between deferring to Guidelines commentary or applying the rule of lenity. Several circuits agree that the rule of lenity nonetheless has a role to play in properly interpreting the Guidelines.290<\/a><\/sup>See e.g.<\/em>, United States v. Lazaro-Guadarrama, 71 F.3d 1419, 1421 (8th Cir. 1995); United States v. Fuentes-Barahona, 111 F.3d 651, 653 (9th Cir. 1997); United States v. Tony, 121 F.4th 56, 59 (10th Cir. 2024).<\/span> In Judge Bibas\u2019s view, if a Guideline is ambiguous, a court should apply lenity before deferring to the Guidelines commentary.291<\/a><\/sup>See <\/em>United States v. Chandler, 104 F.4th 445, 465 (3d Cir. 2024) (Bibas, J., dissenting).<\/span> If Judge Bibas is correct, then any time a Guideline is ambiguous and there is a more forgiving alternative interpretation of a Guideline, a court would adopt that interpretation even if it conflicts with the Guidelines commentary. There are reasons to hesitate before adopting this view, however. It is debatable whether principles of lenity apply in the sentencing context at all and, even if they did, whether a zero-sum choice between deference and the rule of lenity is necessary.<\/p>\n

First<\/em>, it is doubtful that lenity\u2019s central justifications apply in the sentencing context. There are three central principles undergirding the rule of lenity: due process, the separation of powers, and the preference for individual liberty.292<\/a><\/sup>See <\/em>United States v. Nasir, 17 F.4th 462, 473 (3d Cir. 2021) (Bibas, J., concurring). <\/span> None of these principles apply cleanly in this context.<\/p>\n

The rule of lenity seeks to uphold due process, specifically by providing fair notice to defendants by preventing vague laws from serving as bases to proscribe the conduct of individuals.293<\/a><\/sup>See <\/em>United States v. Lanier, 520 U.S. 259, 266 (1997).<\/span> As the Supreme Court has asserted, \u201cfair warning should be accorded as to what conduct is criminal and punishable by deprivation of liberty or property.\u201d294<\/a><\/sup>Huddleston v. United States, 415 U.S. 814, 831 (1974).<\/span> However, it is questionable whether the concern of fair notice applies in the sentencing context. Although this issue has not been much discussed, it is worth noting that, in the sentencing context, \u201cit is the magnitude of the defendant\u2019s sentence after conviction that is ambiguous, not the illegality of the defendant\u2019s conduct.\u201d295<\/a><\/sup>Phillip M. Spector, The Sentencing Rule of Lenity<\/em>, 33 U. TOL. L. REV. 511, 550 (2002); see also <\/em>Elkan Abramowitz and Barry A. Bohrer, The Rule of Lenity in Sentencing<\/em>, 239 N.Y. L. J. 1, 2 (2008) (arguing that \u201cnotice typically is not a concern at the sentencing stage where it has been determined that a defendant has engaged in culpable conduct\u201d and where \u201c\u2018the question of statutory interpretation affects only the degree of punishment.\u2019\u201d) (quoting The Supreme Court, 2006 Term, Leading Cases<\/em>, James v. United States, 121 HARV. L. REV. 185, 351 (Nov. 2007)).<\/span> Guidelines do not inform the public on the scope of legally permissible behavior. Rather, they \u201cstructure and confine the ways in which judges exercise discretion in sentencing.\u201d296<\/a><\/sup>United States v. White, 888 F.2d 490, 498 (7th Cir. 1989).<\/span> This understanding of the Guidelines is consistent with Beckles v. United States<\/em>,297<\/a><\/sup>See generally<\/em> Beckles v. United States, 580 U.S. 256 (2017).<\/span> in which the Supreme Court held the U.S. Sentencing Guidelines Manual was not subject to due process vagueness challenges, because it does not set a range of sentences but rather guides a judge\u2019s discretion while choosing a sentence within a statutory range.298<\/a><\/sup>See id.<\/em> at 263; see also Lanier<\/em>, 520 U.S. at 266 (describing the rule of lenity as a \u201c\u2018junior version of the vagueness doctrine\u2019\u201d) (quoting Herbert L. Packer, THE LIMITS OF THE CRIMINAL SANCTION 95 (1968)).<\/span> As a set of flexible standards, the Guidelines do not cleanly fit within the definition of laws that define criminal conduct. Now that the Guidelines are advisory, they do not even prescribe the extent to which judges can punish criminal behavior.<\/p>\n

The rule of lenity upholds separation of powers principles by preventing courts from defining criminal conduct by interpreting vague laws. This ensures that \u201cthe power of punishment is vested in the legislative, not in the judicial department.\u201d299<\/a><\/sup>United States v. Wiltberger, 18 U.S. 76, 95 (1820).<\/span> However, as discussed,300<\/a><\/sup>See supra <\/em>Part II.A.1.<\/span> the Commission, unlike Congress, does not define criminal conduct. It is a sui generis<\/em> body within the judicial branch that establishes sentencing policies, which now do not even bind courts.<\/p>\n

Finally, the rule of lenity embodies a principle in favor of individual liberty by ensuring that when laws are ambiguous, courts \u201cguard[] against overpunishment,\u201d301<\/a><\/sup>United States v. Nasir, 17 F.4th 462, 474 (3d Cir. 2021) (Bibas, J., concurring).<\/span> by favoring legal interpretations that are more lenient to defendants. This concern arguably deserves the most serious consideration302<\/a><\/sup>See id.<\/em> (arguing that, in the sentencing context, \u201cone can debate the relevance\u201d of the due process and separation of powers rationales for lenity but that the preference for individual liberty applies).<\/span> especially given the upward trend in criminal sentencing and severe problem of mass incarceration at the federal level.303<\/a><\/sup>See Mass Incarceration Trends<\/em>, THE SENTENCING PROJECT (May 2024), https:\/\/www.sentencingproject.org\/reports\/mass-incarceration-trends\/ [https:\/\/perma.cc\/UY8L-MYRF] (describing, among other statistics, the striking increase of the U.S. prison population since the 1970s); Prison Time Surges for Federal Inmates<\/em>, THE PEW CHARITABLE TRUSTS (Nov. 2015), https:\/\/www.pew.org\/ar\/research-and-analysis\/issue-briefs\/2015\/11\/prison-time-surges-for-federal-inmates? [https:\/\/perma.cc\/L4DJ-AK87] (discussing how the average federal prison stay \u201cmore than doubled from 1988 to 2012\u201d).<\/span> The Commission itself estimated that its policy decisions would lead to a ten percent increase in prison population over ten years, holding constant the impact of mandatory minimums in statutes or career offender sentences.304<\/a><\/sup>See <\/em>U.S.S.G. \u00a7 1A1.4(g) (2024).<\/span> Additionally, data demonstrates that, although the Guidelines became advisory after the Supreme Court decided Booker<\/em>, the average sentence length has remained consistent.305<\/a><\/sup>See <\/em>Lynn Adelman & Jon Deitrich, How Federal Judges Contribute to Mass Incarceration and What They Can Do About It<\/em>, 99 JUDICATURE 72, 74 (2015).<\/span><\/p>\n

Nonetheless, it is important to keep in mind that the advisory nature of the Guidelines itself acts as a deterrent to overly punitive Guidelines. Judges that substantively disagree with the Guidelines can and should depart from them because that is how the Guidelines are meant to operate.306<\/a><\/sup>See supra<\/em> Part I.B.1.<\/span> Additionally, the rule of lenity is not clearly a better alternative solution to overly punitive Guidelines. For as many judges that may disagree with the propriety of departing from the Guidelines, there are even more who believe that lenity should play a very limited role within statutory interpretation. To these judges, lenity only comes into play as a last resort after courts exhaust all other tools of statutory interpretation, thereby narrowing its operation.307<\/a><\/sup>See <\/em>Joel S. Johnson, Vagueness Avoidance<\/em>, 110 VA. L. REV. 71, 77 (2024).<\/span> Thus, lenity is an exceedingly weak stop-gap measure to the increasing punitiveness of the Guidelines. On the other hand, departures from the Guidelines, while they may not have reversed the increasing length of criminal sentences,308<\/a><\/sup>See<\/em> Adelman & Deitrich, supra<\/em> note 305, at 74.<\/span> have evidently counteracted the increasing punitiveness of the Guidelines. Moreover, departures can occur coincidingly with courts affording due deference to the Guidelines commentary as a means to properly understand the Guidelines.<\/p>\n

Second<\/em>, it is not clear that the rule of lenity and reflexive deference cannot coexist. The rule of lenity and deference doctrines are both characterizable as substantive canons that only apply when the text being interpreted is ambiguous.309<\/a><\/sup>See <\/em>Lacey Ferrara, Uncommon Allies: Bridging the Gap Between <\/em>Auer Deference and the Rule of Lenity in Criminal Cases<\/em>, 54 SUFFOLK U. L. REV. 157, 165 (2021) (describing both the rule of lenity and Auer <\/em>deference as \u201cnormative canons of construction and [that] both involve an ambiguity threshold\u201d); see also <\/em>William T. Gillis, An Unstable Equilibrium: Evaluating the \u201cThird Way\u201d Between <\/em>Chevron Deference and the Rule of Lenity<\/em>, 12 NYU J.L. & LIBERTY 352, 360 (2019) (making a similar characterization of the rule of lenity and Chevron<\/em> deference).<\/span> When text is ambiguous, deference could either completely trump lenity or vice versa. This dilemma has been discussed with respect to Chevron <\/em>deference and has resulted in a split among the circuit courts.310<\/a><\/sup>Compare <\/em>United States v. Tony, 121 F.4th 56, 69 (10th Cir. 2024) with <\/em>United States v. Smith, 977 F.3d 431, 435 (5th Cir. 2020) (arguing that the rule of lenity does not apply to the Guidelines because they are \u201cmerely advisory\u201d).<\/span> However, there are varying ambiguity thresholds at which the rule of lenity could operate which may differ from the ambiguity threshold required to confer deference to the Guidelines commentary. So long as a deference doctrine and the rule of lenity have different ambiguity thresholds, one canon need not necessarily defeat the other, thereby narrowing the dilemma of choosing between the two.311<\/a><\/sup>Some commentators have even argued that Kisor<\/em> deference and the rule of lenity need not exist in conflict. This is because Kisor<\/em> itself encapsulates the concerns that underly the rule of lenity by asking if the character and context of an agency\u2019s interpretation entitle it to controlling weight. See, e.g.<\/em>, Ferrara, supra<\/em> note 309, at 171; Steininger, supra<\/em> note 159, at 2311\u201312.<\/span><\/p>\n

Reflexive deference likely obviates choosing between deference and lenity. While Chevron<\/em> and Kisor<\/em> deference most likely apply at the same ambiguity threshold as the rule of lenity (after a given text is still ambiguous after a court exhausts all other tools of statutory interpretation),312<\/a><\/sup>See<\/em> Acton, supra<\/em> note 108, at 401.<\/span> Stinson<\/em> deference applies even if a Guideline is not ambiguous at all. This does not necessarily mean that reflexive deference must extinguish any role for the rule of lenity within the interpretation of the Guidelines. Rather, a court could defer to the Guidelines commentary unless a Guideline reaches a certain significant threshold of ambiguity,313<\/a><\/sup>The Supreme Court has most recently suggested that this threshold is reached when there is \u201cgrievous ambiguity\u201d in the text being interpreted. See<\/em> Ocasio v. United States, 578 U.S. 282, 295 n.8 (2016); see also <\/em>Shular v. United States, 589 U.S. 154, 167 (2020) (Kavanaugh, J., concurring). In United States v. Campbell<\/em>, the Fourth Circuit Court of Appeals suggested that the rule of lenity could apply after a court deferred to a Guidelines commentary but still could not discern the proper meaning of a Guideline. 22 F.4th 438, 446 (4th Cir. 2022).<\/span> and has at its disposal a more defendant-friendly interpretation of the Guideline. Under this approach, courts would not have to choose between deference and the rule of lenity. Rather, deference would precede lenity in the analysis, but the rule of lenity could supersede deference if absolutely necessary. Thus, to the extent that the rule of lenity has any operation within the sentencing context, it need not necessarily be defeated by reflexive deference to the Guidelines commentary, nor must it necessarily defeat deference to the Guidelines.<\/p>\n

VI. Conclusion<\/span><\/h4>\n

The U.S. Sentencing Commission is a singular body within the government with unique policy prerogatives. Nonetheless, many lower courts have begun to insert Kisor <\/em>deference, a convoluted deference framework from administrative law, into their interpretations of the Guidelines, which themselves are growing increasingly complex. The rationales against deference to most administrative agencies\u2014including procedure, the separation of powers, and lenity\u2014are ill-fitting as applied to the Commission. Granting Stinson <\/em>deference to the Guidelines commentary and leaving courts the discretion to depart from the Guidelines, when necessary, is preferable to relying on Kisor <\/em>deference to avoid disfavored Guidelines.<\/p>\n

The Supreme Court has the power to clarify what role deference should play in interpreting the Guidelines. When the Court does so, it should reaffirm Stinson<\/em> with updated rationales in line with the Sentencing Commission\u2019s distinct policy mandates and the advisory nature of the Guidelines. Other options, including extending Kisor<\/em>\u2019s holding to Stinson<\/em> or overruling Stinson<\/em> entirely based on Kisor<\/em>, would improperly import a deference doctrine into the Sentencing Commission context and frustrate the Commission\u2019s policy mandates. These options are also unnecessary given that the concerns underlying Kisor<\/em> deference are already remedied by the Guidelines\u2019 advisory nature or inapplicable to the Commission as a sui generis<\/em> institution. Reaffirming Stinson<\/em> deference is, thus, the best path forward and would best ensure the Commission\u2019s ability to operate as Congress intended it to.<\/p>\n\n\n

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[*]<\/a> J.D. Candidate, 2026, Harvard Law School. Special thanks to Matthew Stephenson for his enthusiastic supervision and support throughout my writing process. I am also grateful to Justice Stephen Breyer and Ryan Doerfler for their guiding thoughts and to the Harvard Journal on Legislation <\/em>editors for their engaged feedback on this Note.<\/p>\n\n\n

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Nathalie Beauchamps[*] Abstract The United States Sentencing Commission is a unique institution within the structure of Government: it is a […]<\/p>\n","protected":false},"author":204,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[47],"tags":[77],"class_list":["post-4773","post","type-post","status-publish","format-standard","hentry","category-print","tag-volume-63-2-summer-2026-notes"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZQ7o-1eZ","jetpack_sharing_enabled":true,"post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/posts\/4773","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/users\/204"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/comments?post=4773"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/posts\/4773\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/media?parent=4773"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/categories?post=4773"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jol\/wp-json\/wp\/v2\/tags?post=4773"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}