Court unlikely to alter deference to sentencing guidelines commentary

The Supreme Court has declined to alter its deference to the US Sentencing Commission's commentary interpreting the federal sentencing guidelines. In Beaird v.

United States, the justices considered whether the court's 1993 decision in Stinson v. United States still correctly describes the appropriate deference required.

The justices appeared disinclined to upset how Stinson and lower courts have traditionally approached deference to the commission's guidelines commentary. The legal backdrop of the arguments in Beaird is rooted in recent years, when lower courts began questioning Stinson's continuing validity after the court decided Kisor v.

Wilkie in 2019. Kisor revisited deference to agencies' interpretations of their regulations and emphasized several limitations on that deference, including that the regulation must be genuinely ambiguous.

The government agreed that Kisor limited Stinson to some extent and advocated for a remand, leading the court to appoint an amicus, Anthony Dick, to defend the judgment. Dick argued that, as a general matter, agency deference should be viewed as subject to even more stringent limitations than Kisor endorsed.

However, despite his challenges to Kisor, the amicus maintained that, principally because the guidelines are now advisory, deference to the commentary under Stinson falls entirely outside the framework that limits deference to agency interpretations. Kevin Page, the attorney for Kendrick Jarrell Beaird, rejected this view, arguing that the commentary is entitled to no deference at all.

The justices' questions at oral argument conveyed little interest in using this case to revisit Kisor. Chief Justice John Roberts, the author of Loper Bright Enterprises v.

Raimondo, said to Page that "I just don't see" how deferring to commentary from "an agency in the judicial branch [that] issues non-binding advice, really has much to do with Loper Bright at all." Justice Brett Kavanaugh echoed this sentiment, and many of the justices' questions zeroed in on the advisory nature of the guidelines, which took the case out of the ordinary context of agency deference.

The advisory nature of the guidelines was a key point of contention, with many justices arguing that courts should simply look at what the commission meant in the guidelines and then exercise their discretion. Justice Ketanji Brown Jackson noted that the commentary is "binding on what the commission's advice means," but not binding in the sense that courts have to follow it.

Justice Amy Coney Barrett also raised a point about the commission's frequent use of the same notice-and-comment process as the text of the guidelines, asking Page whether the commission was engaging in a ploy to get things into the commentary that it might not be able to put into the guideline itself. Turning to workability concerns, Justice Sonia Sotomayor addressed the guideline at issue in Beaird's specific case.

She noted that a broad reading of the term "capable" in Section 2K2. 1 could mean that the sentencing enhancement could apply if a defendant's gun merely were able to accept a large capacity magazine, even though the defendant did not have one.

Justice Samuel Alito echoed Sotomayor's point, asking Page how a district judge would decide what the phrase "large capacity magazine" means without the commentary explaining that.