In my recent “inartful dodgers” series (linked below), I bemoaned the Supreme Court’s curious suggestion that the Sentencing Commission should first address acquitted-conduct sentencing policy issues before it took up broader acquitted-conduct constitutional issues. That series got me to wondering whether we now ought also now expect the Supreme Court to keep dodging another important federal sentencing issue which has produced a deep circuit split, namely the weight to be given to guideline commentary. This effective press piece about a recent Tenth Circuit ruling in this area provide the background:
When Congress created the U.S. Sentencing Commission in 1984, it intended to reduce disparities in criminal sentencing at the federal level by developing a set of guidelines, which trial judges now reference during sentencing. However, the guidelines are also accompanied by commentary — notes that clarify and expand upon the meaning of the guidelines. In recent years, federal appeals courts have reached different conclusions about when judges should apply the commentary and when they should ignore it.
Last month, the federal appeals court based in Denver weighed in, deciding it is appropriate to apply the sentencing commentary unless it runs contrary to federal law or the guidelines themselves. “Neither the guideline provisions nor the commentary has any binding legal authority to begin with,” clarified Judge Gregory A. Phillips in the June 23 opinion from the U.S. Court of Appeals for the 10th Circuit. Regardless, he added, there is “nothing tyrannical about judicial deference to the commentary.”
The effect of the decision is to give greater weight to the Sentencing Commission’s annotations to its guidelines, which, in the case of Quindell Tyree Maloid, added at least 14 months to his criminal sentence….
For decades, the Supreme Court held that the commentary was “authoritative” unless contradicted by federal law or the guidelines themselves. Then, in 2019, the court issued Kisor v. Wilkie, finding a government agency’s interpretation of its own rules does not deserve a court’s deference unless the rule is “genuinely ambiguous.” Although Kisor involved the U.S. Department of Veterans Affairs, federal courts soon began to reconsider how to treat the Sentencing Commission’s interpretation of its guidelines through the commentary.
For some appeals courts, the answer was that Kisor applied to the commentary. “Now the winds have changed,” wrote Judge Stephanos Bibas of the Philadelphia-based Third Circuit. “In Kisor, the Supreme Court awoke us from our slumber of reflexive deference: Agency interpretations might merit deference, but only when the text of a regulation is truly ambiguous.”
The federal government has also accepted that Kisor requires judges...
