This article was originally published in Law360 on December 19, 2024, and is republished here with permission.
The U.S. Sentencing Guidelines are instrumental in criminal sentencing, as they provide courts with advisory ranges for imposing sentences.
But the Supreme Court’s landmark decision earlier this year in Loper Bright Enterprises v. Raimondo raises new questions in an ongoing debate over whether and to what degree courts should defer to the guidelines’ commentary when disputes over the meaning of the guidelines arise.
Courts have recognized the tension between Loper Bright and deference to the guidelines, and judges have begun to sketch out the implications in separate opinions.
In this article, we identify the early decisions discussing the intersection of Loper Bright and the guidelines, and we provide three takeaways for defense counsel.
Background on the Sentencing Guidelines
Federal courts are required to calculate a guidelines range — e.g., months of incarceration, or amount of a fine — when determining a criminal sentence.
Although the guidelines range is advisory, it remains a critical influence on courts’ sentencing.[1] Thus, prosecutors and defense counsel often dispute what the right guidelines range is.
The U.S. Sentencing Commission — an independent agency of the judicial branch — publishes the guidelines in its Guidelines Manual. The manual includes not only the guidelines themselves, but also policy statements and commentary that explain how various guidelines provisions should apply.[2]
For example, the guidelines instruct courts to increase the offense level based on the amount of loss arising from certain economic offenses.[3] The relevant guidelines provision — Section 2B1.1 — provides little elaboration on how a court should calculate loss.
But the commentary to Section 2B1.1 provides detailed additional rules, instructing courts on how to estimate loss, on what to exclude from loss, and on rules for specific types of cases such as those involving product substitution, procurement fraud, or Ponzi schemes.[4]
For many cases, especially those involving financial crimes, the guidelines commentary can be more important than the guidelines themselves. Consequently, whether a court defers to the guidelines commentary can dramatically change a defendant’s guidelines range.
Deference to Guidelines Commentary
Even before Loper Bright, there was ongoing debate about when and to what degree courts must defer to the commentary when interpreting the guidelines. In 1993, the U.S. Supreme Court held in Stinson v. U.S. that courts must follow the commentary if the commentary “does not run afoul of the Constitution or a federal statute, and it is not plainly erroneous or inconsistent with” the text of the guidelines.[5]
Stinson analogized the guidelines to a principle of administrative law called Seminole Rock or Auer deference.[6] These cases taught that an agency’s interpretation of its own regulation was entitled to controlling weight unless it was contrary to law, plainly erroneous or inconsistent with the regulation it was interpreting.
While recognizing that the analogy between administrative regulations and the guidelines was “not precise,” the Supreme Court held that the guidelines commentary would “be treated as an agency’s interpretation of its own legislative rule.”[7]
In 2019, Stinson’s requirement of deference was called into question when the Supreme Court revised Auer deference in Kisor v. Wilkie.[8] Kisor holds that a court should not defer to an agency’s interpretation unless the regulation is “genuinely ambiguous.”[9]
And Kisor replaced Auer’s controlling weight formulation with a multifactor standard. Thus, even when a regulation is truly ambiguous, courts must consider a number of other factors before deferring to the agency’s interpretation.[10]
The impact of Kisor on the guidelines commentary remains a subject of ongoing debate among the courts of appeals. Since Kisor, the courts of appeals are divided on whether Auer deference still applies to the guidelines commentary, as the Supreme Court expressly held in Stinson, or whether courts should apply Kisor’s multifactor framework to the guidelines commentary.[11]
Loper Bright Adds to Debate Over Deference to the Commentary
This ongoing debate over deference to the guidelines commentary became more complicated last summer with the Supreme Court’s decision in Loper Bright.[12] Loper Bright overruled the Chevron doctrine, by which courts deferred to agencies’ reasonable interpretations of ambiguous statutes.[13]
Although Loper Bright’s holding — that courts owe no deference to an agency’s interpretation of a statute — does not directly bear on the guidelines, Loper Bright’s reasoning may have broader implications. The court recognized that “statutes, no matter how impenetrable, do — in fact, must — have a single, best meaning.”[14]
“In the business of statutory interpretation,” the court explained, “if it is not the best, it is not permissible.”[15] By describing the role of courts as determining the one, best meaning of a text, Loper Bright calls all deference doctrines into question — including deference to the guidelines commentary.
Early Decisions Grappling With Loper Bright’s Impact on Guidelines Commentary
Courts have just begun to recognize the potential impact of Loper Bright on the guidelines commentary. In three recent decisions, the Third, Fourth and Sixth Circuits have acknowledged Loper Bright in the context of the guidelines.[16]
Indeed, in describing its application of Auer deference to the guidelines, the U.S. Court of Appeals for the Fourth Circuit’s decision in U.S. v. Boler recognized that Loper Bright “calls into question the viability of Auer deference.”[17]
These recent cases — although not squarely deciding the issue — show that courts recognize that Loper Bright may affect deference to guidelines commentary. This is, in other words, an issue to watch.
Separate opinions have also recognized that Loper Bright may have a role to play in interpreting the guidelines. In U.S. v. Deleon, U.S. Circuit Judge Robin Rosenbaum of the U.S. Court of Appeals for the Eleventh Circuit wrote separately to explain why a sentencing case merited en banc review.
Her concurrence notes that “to the extent Loper Bright casts any doubt on Dupree’s methodology” — that is, Eleventh Circuit precedent on interpreting the guidelines — “that may be another good reason for us to consider rehearing this case en banc.”[18]
A recent concurrence from U.S. Circuit Judge Carlos Bea addresses the issue from a different angle. In U.S. v. Trumbull, the U.S. Court of Appeals for the Ninth Circuit considered whether a handgun capable of accepting a 17-round magazine qualified as a “semiautomatic firearm that is capable of accepting a large capacity magazine” under Section 2K2.1 of the guidelines.[19]
The Ninth Circuit panel majority concluded in August that the phrase “large capacity magazine” is ambiguous because the term “large” is a relative term.[20] The panel deferred to the guidelines commentary, which defines a large capacity magazine as more than 15 rounds of ammunition.[21]
Judge Bea agreed that the firearm at issue was capable of accepting a large capacity magazine, but disagreed with the majority’s deference to the guidelines commentary. He wrote that the majority was “mistaken to brush Loper Bright aside and treat it as irrelevant to the interpretation of regulatory language,” and that Loper Bright “made clear that courts cannot merely throw up their hands … when a term is difficult to apply.”[22]
Judge Bea concluded that after Loper Bright, courts “should hesitate to expand Kisor deference beyond those cases in which the meaning of the words used is in doubt.”[23]
Judge Bea’s concurrence supports the proposition that courts should carefully scrutinize the text of the guidelines — that is, exhaust the “full interpretive toolkit” — before considering deference to the guidelines commentary.[24]
One other separate opinion on the relationship between the rule of lenity and deference to the guidelines commentary merits discussion. The rule of lenity holds that courts should interpret ambiguous criminal statutes in favor of defendants. Before Loper Bright, courts debated whether the rule of lenity trumped Chevron deference to an agency’s interpretation of a statute.[25]
In his August dissent from denial of rehearing en banc in U.S. v. Chandler, U.S. Circuit Judge Stephanos Bibas of the U.S. Court of Appeals for the Third Circuit argued that the rule of lenity also trumps deference to the guidelines commentary when the commentary favors the government’s interpretation of an ambiguous guidelines provision.[26]
Judge Bibas described Loper Bright as “cast[ing] doubt” on continued “strong deference” to the guidelines commentary.[27]
Takeaways for Defense Counsel
Loper Bright creates opportunities for defense counsel to advocate for more favorable guidelines interpretations. Case law interpreting Loper Bright’s impact on deference to the guidelines commentary is only beginning to take shape.
Courts have acknowledged the tension between Loper Bright and Supreme Court precedent requiring deference to the guidelines, and separate opinions have begun to sketch out the implications. We see three takeaways from these early cases for defense counsel.
First and foremost, look for opportunities to press rigorous textual arguments based on the text of the guidelines to avoid deference to the guidelines commentary. Do not assume any longer that Stinson’s command of deference to the guidelines commentary is the rule.
Instead, take a fresh look at the guidelines provision itself and consider arguments that do not rely on the commentary.
Judge Bea’s concurrence in Trumbell provides an early road map for applying the full interpretive toolkit of statutory interpretation before even considering the guidelines commentary. Put another way, counsel should present courts with rigorous arguments based on the text of the guidelines themselves, and contend that reference to the guidelines commentary is therefore unnecessary.
Second, consider arguing that the rule of lenity trumps deference to guidelines commentary that favors the government. Judge Bibas’ dissent develops this argument, as did a number of pre-Loper Bright decisions in the Chevron context.[28]
Citing Loper Bright, remind courts of their independent duty to interpret governing texts without deference to agencies. Part of that settled interpretive tradition is the rule of lenity.
Lastly, track the development of cases discussing the intersection of Loper Bright and deference to the guidelines commentary. It is possible that courts or judges in separate opinions may develop arguments, or begin to call for challenges to overrule deference to the commentary in its entirety.
Moreover, even if courts do not jettison deference to the guidelines commentary in all instances, there likely will be additional cases to cite that decline to extend deference to particular commentary provisions — whether because the guidelines themselves are clear or because the commentary is not sufficiently persuasive.
Courts are just beginning to work through the impact of Loper Bright on the U.S. Sentencing Guidelines — including the ongoing viability of deference to the guidelines commentary. This area of evolving law has provided, and will likely continue to provide, opportunities for creative advocacy in federal criminal matters.
[1] U.S. v. Booker , 543 U.S. 220, 227 (2005).
[2] U.S. Sentencing Commission, Guidelines Manual §§ 1B1.6, 1B1.7 (Nov. 2024) (U.S.S.G.)
[3] U.S.S.G. § 2B1.1.
[4] U.S.S.G. § 2B1.1 cmt. 3.
[5] Stinson v. U.S. , 508 U.S. 36, 47 (1993) (citation and quotation marks omitted).
[6] Id. at 44-47.
[7] Id. at 44.
[8] Kisor v. Wilkie , 588 U.S. 558 (2019).
[9] Id. at 573-75.
[10] Id. at 575-579.
[11] See, e.g., U.S. v. Ponle , 110 F.4th 958, 961-62 (7th Cir. 2024) (collecting cases and discussing the circuit split over deference to the guidelines commentary).
[12] Loper Bright Enterprises v. Raimondo , 144 S. Ct. 2244 (2024).
[13] Id. at 2264.
[14] Id. at 2266.
[15] Id.
[16] U.S. v. Rutherford , 120 F.4th 360, 379 (3d Cir. 2024) (citing Loper Bright as “instructive” when interpreting guidelines policy statements); U.S. v. Boler, 115 F.4th 316 (4th Cir. 2024); U.S. v. Charles , No. 22-5424, 2024 WL 4554806, at *13 (6th Cir. Oct. 23, 2024) (unpublished) (assuming Loper Bright does not alter deference to guidelines commentary under Kisor).
[17] Boler, 115 F. 4th at 322 & n.4.
[18] U.S. v. Deleon , 116 F.4th 1260, 1267 n.8 (11th Cir. 2024) (Rosenbaum, J., concurring).
[19] U.S. v. Trumbull , 114 F.4th 1114, 1117 (9th Cir. 2024); see also U.S.S.G. §2K2.1.
[20] Id. at 1118-19.
[21] Id. at 1119-20.
[22] Id. at 1126 (Bea, J., concurring) (citation and internal quotation marks omitted).
[23] Id. at 1126-27 (citation and quotation marks omitted).
[24] Loper Bright, 144 S.Ct. at 2271.
[25] Id. at 2269.
[26] U.S. v. Chandler , 114 F.4th 240, 241 (3d Cir. 2024) (Bibas, J., dissenting from denial of rehearing en banc).
[27] Id.
[28] See, e.g., Cargill v. Garland , 57 F.4th 447, 466-68 (5th Cir. 2023) (en banc), aff’d, 602 U.S. 406 (2024); Carter v. Welles-Bowen Realty Inc. , 736 F.3d 722, 729 (6th Cir. 2013) (Sutton, J., concurring).
