Virginia Lawyers Weekly VA Lawyers Weekly
Where the Supreme Court has held that commentary to the sentencing guidelines, even when the related guideline is unambiguous, is authoritative and binding unless it is inconsistent with law or the guideline itself, and the court has not overruled that decision, it remains good law.
Background
The issue is the enforceability and weight to be given the official commentary of the sentencing guidelines. The court must consider whether it is required to continue to apply the rules set forth in Stinson v. United States, 508 U.S. 36 (1993), which held that guidelines commentary, even when the related guideline is unambiguous, is authoritative and therefore binding on courts unless the commentary is inconsistent with law or the guideline itself, or whether Stinson was overruled by the Supreme Court’s recent decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), which limited controlling deference to an executive agency’s reasonable interpretation of its own regulations to where “the regulation is genuinely ambiguous.”
Analysis
Over the years, district judges have routinely consulted commentary to understand and apply the guidelines, and they never felt themselves restrained in doing so by any notion that commentary was binding only when the guideline was ambiguous or when the commentary purported to resolve a textual ambiguity. Indeed, Stinson explicitly recognized that commentary can be useful even when a guideline is “unambiguous.”
In Kisor, the issue presented was whether the court should overrule its prior decisions in Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), both of which provided that agencies’ interpretations of their own rules should be given controlling deference, even though the interpretations did not go through the notice-and-comment procedure that the Administrative Procedure Act requires for the promulgation of rules. The Kisor court declined to overrule Seminole Rock and Auer. But it did, understandably, impose substantial restrictions on courts’ reliance on agencies’ interpretations of their rules.
It readily appears that Kisor, considered on its own terms, does not apply to the sentencing commission’s official commentary in the guidelines manual. While the court explicitly cabined the scope of deference afforded by Seminole Rock and Auer, there is scant suggestion in Kisor that the court thought that those cases applied to the enforceability of and weight to be given to guidelines commentary. Moreover, Kisor deference, as the Kisor court explained, comes into play only when agencies are interpreting their regulations. But the sentencing guidelines provide a broader role for commentary. Finally, it is noteworthy that Kisor did not purport to overrule Stinson, and it is not this court’s role to say it did.
The court holds that guidelines commentary is authoritative and binding, regardless of whether the relevant guideline is ambiguous, except when the commentary “violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of,” the guideline. And having concluded that Stinson continues to provide “the standard that governs the decision whether particular interpretive or explanatory commentary is binding,” the court readily conclude that Application Note 5(C) is owed controlling deference.
Reasonableness
Lenair Moses contends that even if the district court correctly calculated his advisory sentencing range as 151 to 188 months’ imprisonment, his 120-month sentence of imprisonment was substantively unreasonable given that the instant federal crimes for which he was being sentenced involved his distribution of “less than one-half of a gram of crack cocaine.”
The district court imposed a sentence consistent with the statutory directives, specifically taking into account, among other things, the requirements for career-offender status, the small quantity of crack cocaine involved in the instant offenses, Moses’s arguments regarding his 2009 convictions and his very serious criminal history. After conducting an individualized assessment, the court selected a sentence of imprisonment that was 31 months lower than the bottom of the advisory guidelines range.
Affirmed.
Dissenting/concurring opinion
King, J., dissenting in part and concurring in the judgment:
On Jan. 7, 2022, another panel of this court published a unanimous opinion in United States v. Campbell, No. 20-4256 (4th Cir. Jan. 7, 2022). The legal analysis of the panel majority in this case conflicts with the Campbell precedent in concluding that Kisor is inapplicable. I therefore dissent from those aspects of the panel majority’s opinion that conflict with Campbell. Nevertheless, because I agree with the result reached by the panel majority, I concur in the judgment.
United States v. Moses, Case No. 21-4067, Jan. 19, 2022. 4th Cir. (Niemeyer), from EDNC at Raleigh (Flanagan). Marshall Hood Ellis for Appellant. David A. Bragdon for Appellee. VLW 022-2-015. 25 pp.
