Certiorari and Stinson Deference

Administrative Law & Regulation Practice Group Teleforum

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On June 16, 2021, The Federalist Society's Administrative Law & Regulation Practice Group hosted a teleforum on "Certiorari and Stinson Deference."

The U.S. Supreme Court recently signaled a retreat from deference to agency guidance in Kisor v. Wilkie, in which the Court narrowed judicial deference available to agencies construing their own ambiguous regulations. 

But what about judicial deference to the U.S. Sentencing Commission, the agency housed in “within the Judicial Branch,” and which Justice Scalia derided as a “junior varsity Congress,” making policy choices that should be committed to the legislature? In Stinson v. United States, the Supreme Court held that courts should defer to the commentary the Sentencing Commission issued construing their formally adopted Sentencing Guidelines, unless they are “inconsistent with, or a plainly erroneous reading of,” the relevant Guideline.  The Stinson Court required such deference even if the Commission’s interpretation “may not be compelled by the guideline text.” 

On June 17, the Supreme Court’s conference is slated to include discussion on a series of cases percolating up from the courts of appeals that all raise similar challenges to the use of Stinson deference in deciding criminal defendants’ sentences.  The Court seems poised to grant certiorari to one or more of these cases challenging deference in order to resolve a broad and deep split among the circuits that reflects inconsistencies in sentencing nationwide.  Or, at least, it would explain why the court has been holding some of these cert petitions for over six months in order to consider all of them together—perhaps in order to select the best vehicle from among the slew of petitions clamoring for the Court’s consideration. 

Here to discuss the pending Stinson deference cert petitions is appellate attorney John Elwood, a partner at Arnold & Porter who is better known in some circles as the relist guru on SCOTUSblog.  John filed a petition for certiorari on behalf of Zimmian Tabb in a case out of the Second Circuit—one of the first Stinson deference cases to reach the Supreme Court last fall.  John will explain what’s at stake in the reconsideration of Stinson deference, including the following questions: Do constitutional due process and the rule of lenity preclude Stinson deference when commentary to a Sentencing Guideline would increase a sentence?  Do courts owe deference to Guidelines commentary that appears to expand the scope of the Sentencing Guidelines?  Post-Kisor, may courts defer to commentary without first determining whether the pertinent Guideline is ambiguous?  Post-Kisor, must courts apply canons of construction like the rule of lenity before granting the agency deference?  And, practically speaking, what might the Supreme Court be looking for to select the best vehicle for reconsideration of Stinson deference from among the pending cert petitions?  Moderating the discussion will be New Civil Liberties Alliance Executive Director and General Counsel, Mark Chenoweth.  NCLA authored another of the cert petitions pending before this week’s conference at the Court on behalf of a defendant in the Eighth Circuit, Marcus Broadway.   


  • John P. Elwood, Partner, Arnold & Porter
  • Moderator: Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties Alliance 

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.


Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.



Evelyn Hildebrand:  Welcome to The Federalist Society's virtual event. This afternoon, June 16, we discuss certiorari and Stinson deference. My name is Evelyn Hildebrand, and I'm an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call.


      Today, we are fortunate to have with us, Mr. Mark Chenoweth and Mr. John Elwood. Mr. Mark Chenoweth will be moderating the discussion, and he will introduce our speaker. Mark is Executive Director and General Counsel at New Civil Liberties Alliance, and he is an Executive Committee Member of The Federalist Society's Administrative Law and Regulation Practice Group.


      After our speaker gives his opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for that portion of the event. If you do have a question, please enter it into the Q and A box at the bottom of your screen. Please don’t enter questions into the Chat feature. With that, thank you for being with us today. Mark, the floor is yours.


Mark Chenoweth:  Thank you, Evelyn. And thank you very much to The Federalist Society for having John and I with you today to talk about this important issue having to do with Stinson deference. John is the appellate expert here. He is a Partner at Arnold & Porter. He has argued nine cases at the U.S. Supreme Court. He's a former Assistant to the Solicitor General, as well as Senior Deputy in the Office of Legal Counsel at the Department of Justice. And, of course, he clerked for Justice Kennedy on the U.S. Supreme Court.


      So, John, terrific to have you with us today to share your expertise both on Stinson deference but also on the likelihood of a cert grant in this case. I know I think of you as the realist guru on the SCOTUS blog and so having your thoughts on this is welcome today. Before I throw it to you and ask you some questions, I thought I would give a little bit of background to our audience, who may be less familiar with Stinson deference.


      Stinson deference is just one of a dozen or more kinds of judicial deference that the federal judiciary employs. In this particular instance, it goes back to a 1993 U.S. Supreme Court case, and Stinson deference involves deference to the commentary of the U.S. sentencing guidelines. What the Supreme Court said is that commentary interpreting a guideline is authoritative, meaning that courts have to defer to it unless it's inconsistent with or a plainly erroneous reading of that guideline.


      As a result of this kind of deference, we have judges across the country who are increasing sentences for criminal defendants based on something that's in commentary, not based on something that is in the guideline itself or something that Congress has voted on, either by way of statute or by way of accepting the guidelines themselves. The reason that this issue is coming to a head now is because there's been a lot of action in the federal courts of appeals lately.


      Maybe the best place to start is to look at the D.C. Circuit. In 2018, they issued an opinion in U.S. v. Winstead, rejecting the application of a Stinson deference. Then a year later, in 2019, the Sixth Circuit en banc rejected Stinson deference in the U.S. v. Havis case. Then December 1 of last year, the Third Circuit, again en banc in U.S. v. Nasir, rejected Stinson deference. But those courts, unfortunately, are in the minority.


      We have at least seven or eight -- or it might escape my attention, John. It might be up to nine. But we have pretty much every other circuit has gone the other way and has stuck with Stinson deference, which is why we had such a slew of these cases all pending in front of the Supreme Court right now, including a case out of the Second Circuit that you filed the cert petition in U.S. v. Tabb, and a case out of the Eighth Circuit, U.S. v. Broadway, where the New Civil Liberties Alliance filed the cert petition there.


      Let me throw it to you and just ask you to outline the issue in this case, John. And maybe just start there and also explain maybe how the Court's recent decision in Kisor has or hasn't impacted what's going on with Stinson deference around the courts of appeals.


John P. Elwood:  Sure. And thank you very much for having me, and thank you to The Federalist Society for having me. So Stinson deference is a variety of Seminole Rock or Auer deference, which have been very much in the headlines recently. Those cases stand for the proposition that courts defer to an agency's reasonable interpretation of its own regulations if their regulations are ambiguous. In Stinson, the Supreme Court said basically the closest analogy here to the sentencing guidelines, and commentary is that, essentially -- that the sentencing guidelines, which are the formal things, they're the equivalent of the regulations.


      The Sentencing Commission does those by notice and comments. They send them up to Congress where they have to stay there — it's actually for six months — and Congress during that time can modify them or disapprove them. The Supreme Court upheld that process in Mistretta. And even though the statute doesn't really -- the sentencing reformat doesn't really address commentary or say that the Sentencing Commission can issue commentary, it does reference commentary. That is the equivalent of guidance. The Supreme Court said in Stinson that it doesn't have to be by notice and comments, and Congress doesn't really have a say in the matter.


      In Stinson, they applied, essentially, the Seminole Rock formulation, which is more or less defaulting the deference. You defer to it unless it's inconsistent with the provision. Auer has been very much in the headlines — Auer deference — and there was a lot of talk that the Supreme Court might overrule it because it was unpopular and encouraged agencies, people said, to issue ambiguous guidelines because it gave them more power then to weigh in then without notice and comment to say how things can be construed.


      But in Kisor v. Wilkie, the Supreme Court kind of carved back on Auer deference. They're not decentered, but the people who concurred in the judgment, the Justice Gorsuch's of the world, said that at the last hour as a zombie. But the plurality slash majority in an opinion written by Justice Kagan said that they reinforce the limits of Seminole Rock and Auer. Saying basically, it only came into play if the regulation was genuinely ambiguous and exhausted all the tools of statutory interpretation. And they said that was important because, otherwise, if agencies could issue binding rules or issue binding guidance without ambiguity, they said that that posed a risk of permitting the agency under the guise of interpreting a regulation to create a de facto new regulation. So it carved back a bit on what sort of guidance there is.


      Now, as you mentioned, there is a group of cases before the Supreme Court now that address how Kisor maps onto the sentencing context, whether that changes Stinson deference or whether Stinson deference survives it. Now, these cases arise -- they transcend to the specific guidelines issue that all happen to involve, but they all happen to involve a particular sentencing guidelines enhancement which is extremely common. It's the career offender provision, which imposes an enhanced penalty for people who commit or are convicted of committing a controlled substance offense or a crime of violence who all ready have two such convictions. So it's kind of like a three-strikes provision.


      It's been called draconian. It was called draconian by the Second Circuit in the case I'm handling. And just as an example, it took Mr. Tabb, Zimmian Tabb -- his sentencing range without the enhancement would have been a little under three years to a little over three years. His range with the enhancement is a little over 12 years to almost 16 years, so it's a minimum kind of 9 year difference. It matters a lot, and as I indicated, it arises an awful lot -- 1,500 to 1,800 cases a year. It's no coincidence that these -- that all 13 cases involve it.


Mark Chenoweth:  So what's the issue that's splitting the circuits in these cases, John?


John P. Elwood:  Well, in addition to the narrow issue about -- the issue here is whether -- the narrow guidelines issue is whether the guideline, the part that again was passed by the Commission itself in notice and comment rule making, said that basically a controlled substance offense is an offense involving the distribution of drugs. They, by commentary, expanded that to inchoate offenses, that is, conspiracy to distribute and attempts to distribute. And the narrow formulation is between courts that say that guideline -- or that commentary isn't appropriate. The broader issue is whether you can defer to the commentary without it showing that the guideline itself is ambiguous. Because, for example, Judge Silverman of the D.C. Circuit case you said, he thought that the guideline was unambiguous.


Mark Chenoweth:  Right.


John P. Elwood:  He unambiguously excluded inchoate offenses. And if that's the case, the commentary plays no role. Another kind of way of framing it -- and so there is this dispute between the three courts, the D.C. Circuit, the Sixth Circuit, Third Circuit, and pretty much everybody else, on the question of whether you need ambiguity before you defer. Another way of framing it, though, is that both the Sixth Circuit and the Third Circuit have explicitly said Kisor requires a [inaudible 11:07] back at this kind of deference. Kisor requires to revisit Stinson deference.


      And several other courts said we might join the Sixth Circuit, the D.C. Circuit, the Third Circuit if we had the flexibility, but we've all ready decided that a Stinson deference is the law of the land, and we have to follow that. So that's another way of framing it is that it's between those courts that think that Kisor changed something and those that didn't.


      One other comment that I think is kind of noteworthy here is that both the Sixth Circuit and the Third Circuit here ruled en banc, and it's very unusual to have this many en banc courts. The Sixth Circuit was also unanimous, and a unanimous en banc is just astonishing [Laughter] because you have a fractious court -- I mean, the Sixth Circuit is famous for being fractious. I think that's a little bit of a historical artifact more than a current description, but it has a reputation for being fractious. And to have the Sixth Circuit be unanimous is kind of astonishing.


Mark Chenoweth:  It is, yeah. Certainly, when I clerked 20 years ago, that was the case. I think it's gotten a little bit better, but there still is a wide divergence of opinion among the active judges on many issues, so I do think it's astonishing to get that unanimity.


      I wonder if there's something about the en banc courts that tells us something else, John, which is that the Supreme Court wouldn't necessarily have to reach this issue if the other courts were all willing to do what the Third Circuit and the Sixth Circuit have done because Stinson itself involved -- yes, it involved deference to the commentary, but it only did so in the context of, as I remember from Stinson, in the context of commentary that did not increase the sentence of Stinson. And so all these subsequent cases that involve -- like the enhancement that you're talking about, that all involve increasing the sentence, arguably those are outside the ambit of Stinson deference, or at least an en banc court could so rule if it chose to. But that doesn't seem to be the way that any of these courts are really going.


John P. Elwood:  No, it isn't going that way. And there's so many courts involved that it just isn't practical for the split to heal itself. There are several courts, though, including the Ninth Circuit, two judges on the First Circuit, and Judge Edith Jones on the Fifth Circuit, who said basically if we weren't bound by prior precedent, we'd be tempted to follow them. I think that's an indication that they just don’t feel like a n en banc prcedure is going to be in the offlane. It's very hard to get en banc in many courts and sometimes harder to get en banc than it is to get Supreme Court review.


Mark Chenoweth:  Well, I know with Mr. Broadway in the Eighth Circuit, several people have sought en banc review in the Eighth Circuit unsuccessfully on this exact issue, so it's not going to happen any time soon. They've had plenty of opportunity to do it if they wanted to, and they've declined.


      Can you talk about the factors that the Court may be -- there may be something else you wanted to get to first, John, but the factors that the Court will be looking at as it considers whether or not to grant cert in this slew of cases. Or, maybe, what factors it'll look at in deciding which, if any of these, to grant cert in.


John P. Elwood:  Well, the traditional factors are basically -- largely, the Court only takes cases for circuit splits. There are some exceptions, what Lisa Blatt humorously called the outrage docket, outcomes that were so outrageous that they just couldn't abide them. But the most important thing, really, is a circuit split.


      The government initially tried to portray these cases as involving only matters of the application of the sentencing guidelines. And there's a fairly strong tradition because Congress charged the Sentencing Commission with looking at circuit splits and resolving them of not taking cases and things that are simply circuit splits and sentencing cases, things that the Sentencing Commission could address. So if it were just talking about the application of this one guideline, that's something that the Sentencing Commission, in theory, could address even though they haven't had a quorum and they've been unable to act since 2019. And they're down to a single member, Justice Breyer's younger brother, who is over there all by himself, I guess [Laughter]. By the way, his --


Mark Chenoweth:  He must be busy.


John P. Elwood:  -- expires in October, and so then we'll have zero Commissioners. But still, if it were just that, it might be something that the Sentencing Commission could resolve, but the Sentencing Commission can't resolve how much deference guidelines get, and it's becoming increasingly clear that there is a genuine split there.


      Another factor is the importance, and I think in a narrow sense it's important because, again, as I say, it covers 1,500 to 1,800 cases a year, just this guideline. But potentially, it affects 75,000 defendants a year because that's how many people are sentenced that are almost all sentenced under the guidelines, and so anyone who is subject to a commentary -- whose sentence is affected by the guidelines commentary is potentially affected by this.


      So important or occurring and a circuit split, those are the main factors. Again, there are 13 cases here. There was a time when the Court rescheduled them, that is that these cases were all on for one conference, and then the Court rescheduled them for another conference under the period where they were basically -- no one knew what conference they'd be on for and --


Mark Chenoweth:  Can you explain the difference between rescheduling and relisting? Some of our audience might not know that.


John P. Elwood:  Sure. Rescheduling is something that occurs before a case is discussed at conference. It only takes a single justice to do it, but it might say the case is on for the June 17 conference, and today, for example, the day beforehand they'll say I'm not going to be ready to discuss that then, let's push it off to June 24 or early July. Actually, I don't think there are any early July conferences there -- end of June or put it off until the long conference at the end of the summer.


Mark Chenoweth:  Yeah, September 27, I think, is the one that's getting -- lots of stuff getting put on that one now.


John P. Elwood:  But relisting is when they discuss it at one conference, and they usually relist it for the very next conference. Meaning, they discuss it at one, and they discuss it at the next. The fact that the Court rescheduled them all, it looks apparent that it was to try to get them all so they could consider all 13 together, which I think -- you can't read too much into it, but I think it is at least an indication that this is a case that they're going to discuss.


      It's an important enough one that they're going to discuss whether they ought to take it rather than -- the default in the Supreme Court when they get 8,000 cert petitions a year is that they won't discuss it unless somebody asks for it to be discussed. I think that the fact that they rescheduled it is an indication that they probably are going to discuss it at the conference, which is currently on for tomorrow.


      The things that I think they're going to be looking for is something that would be a good vehicle for this. At a minimum, they're going to want to avoid cases that have preliminary issues that might prevent the Court from reaching the issue, such as obviously mootness. That's something that they care a great deal about. It doesn't really matter so much in criminal cases unless the person is released from jail or dies. But whether there's some antecedent question that might keep the Court from reaching the question, such as a procedural bar.


      In some of the cases that are in this group, the government has said that they failed to raise the issue below, and so it would be reviewed for plain error and that there are issues like that. They may also make sure that it's a case where it affects the outcome. There are some cases where even though the narrow issue here about whether the commentary increased the guideline might have affected one of their predicate offenses. If they had like ten predicate offenses, they're going to be able to get the requisite two together there even without this commentary. That affects other cases that are in the guideline.


      Then, there's another case where it just wouldn't have affected the outcome, and the government said this isn't a suitable vehicle because the judge pretty much came out and said even if you weren't getting this enhancement, I would have upwardly departed to make sure you get all one sentence. So if it doesn't affect the outcome, that's not a formal reason they couldn't address the legal issue, but as a practical matter, they would.


Mark Chenoweth:  Sure. Is there a -- you were talking about the reasons that the Court considers, but do they look at the stakes? You were talking about how much this increases the sentences for folks, but do they look at things like whether or not there's a due process problem here, whether or not the rule of lenity is involved? Are those considerations, or does that just -- that only comes in once they've granted cert and they start looking at the substance of the case?


John P. Elwood:  I think that that would probably matter in terms of the importance of it. When we're talking about -- and particularly due process and general fairness things, those are things that they obviously -- those have important kind of institutional states. I think, especially right now, the Court is very attuned, or that at least the majority of the justices who are very attuned, to this sort of due process issues involved in agency decision making and the ability of the administrative state to have effects on liberty.


      The sentencing guidelines are an area where it has a very direct stake that you can consider the 75,000 people who are sentenced every year in federal court as people who are affected by this case -- or by this issue and whether or not this is a fair procedure or fair way of deciding what sentences are going to be.


Mark Chenoweth:  Even assuming that there is ambiguity in the guidelines, it would seem to me that the rule of lenity cuts in the exact opposite direction from Stinson deference, at least to the extent that the commentary is recommending an upward departure in the guidelines. Is that something that Kisor left open? Sort of where in the process the rule of lenity would come into the interpretive equation.


John P. Elwood:  Right. Because Kisor, after all, was a civil case. Whenever you talk about these sort of administrative law principles in the criminal law context, it raises interesting issues because the sort of magic word in the administrative law world is ambiguity. And ambiguity is when the state's power is increased, their interpretive power is increased. That has a very different effect in the criminal context. Ambiguity, we all immediately think of the rule of lenity because that's the standard principle if something's ambiguous, but then you have to -- if I break, tie goes to the defendant.


      One thing that Kisor clarified, again, is that you're supposed to use every tool in the interpretive tool kit — the judicial tool kit — before you say something is ambiguous because the idea is that you should have an idea before you give that power to the agency. You should have a pretty good idea of what Congress really meant when it -- or what the agency really meant when it issued the regulation at issue, or here, the guideline at issue.


      One of the tools in the judicial tool kit is the rule of lenity. This is something that Judge Steve Bibas, a very distinguished judge in Philadelphia, explicitly said in the Nasir case, or however you pronounce it, clear en banc under the Third Circuit. It's something that Judge Sutton -- Jeff Sutton said in another case a couple years back in the Sixth Circuit. So all of those people say it, or there is at least a pretty good line of cases or line of thinking, that the rule of lenity is one of the tools that has to be exhausted before you can give the agency deference for its interpretation of its own regulation.


Mark Chenoweth:  Right. I think Judge Thapar said alarm bells should be going off when you see this kind of deference happening in the criminal context.


John P. Elwood:  Right. Exactly -- exactly. And that's another thing that's very noteworthy here is that there are a lot of very, very distinguished judges, and, frankly, a lot of very conservative judges, who are ringing the alarm on this: Judge Thapar, Judge Silverman, Judge Bibas. And Judge Sutton wrote a separate concurring opinion in the Sixth Circuit, basically driving home the point of the strength of the arguments against the government here.


Mark Chenoweth:  I don't know that you have a good answer to this question, John, but where has this issue been for the last 25 years? It seems like this could have been -- this could have come to a head at any point pretty much since 1993. I guess I don't know when the commentary was issued by the Sentencing Commission, but my sense is it's not that recent.


John P. Elwood:  No -- no. The guideline's from 1987, the commentary is from 1989, so it's been around a long time. I think that is just kind of affirm, and this is a way the Court goes in that -- the first place, administrative law has been a very important thing, particularly with some recent additions to the Court, particularly Justice Gorsuch, something that matters to him a great deal. Even though this isn't an issue that immediately jumps out in a criminal manifestation, this issue -- when these ideas are in the air is when you started -- they started getting currency, even in the courts of appeals. Like, for example, the Sixth Circuit's first ruling in this predated Kisor, so it --


Mark Chenoweth:  Right. The Havis case predated Kisor, yeah.


John P. Elwood:  Yes, exactly. Then you know this thinking is out there, but it is really true that sometimes it takes the Court a long time to get to an issue, partly also because they are, as they say, a Court of final review, not a Court of first review. So there's kind of a long tradition of letting the issue percolate.


      And, for example, I had the misfortune of having one of the early petitions, cert petitions, addressing whether or not an unauthorized driver of a rental car has a privacy interest in the rental car for purposes of auto searches. We brought that petition up when it was like a 1-1 split. They waited for it to be a much, much deeper split, and then they said yeah, they do have that interest, which was -- I would note -- the minority position. And it's kind of too bad --


Mark Chenoweth:  But presumably the position you were espousing at the time [Laughter].


John P. Elwood:  Yes, exactly. But basically, it took ten years to get the defendant-friendly result out of the Supreme Court there because they really do like to wait until the split is well developed.


Mark Chenoweth:  Well, what's the government's response to this? I assume they're not rolling over. What are they arguing on behalf of Stinson deference?


John P. Elwood:  Sure. Well, first of all, they argued that -- because we were one of the earlier cases, yours and ours were two of the earliest cases, they began by saying that the split is only on this narrow guidelines issue, which the Sentencing Commission should resolve. We should leave it to them. I think that that was minimally plausible at the time. I think both of us filed because at that point, really only we had the D.C. Circuit decision and the first Sixth Circuit decision.


      But since then, we've had the Third Circuit en banc, which was very explicit. They were saying Kisor doesn't permit this. And since then, the Sixth Circuit has said repeatedly, hey, you know that decision we had back then, that was based on Kisor. So it's very, very -- I think at this point there's just no denying anymore that there is an actual circuit split, even on the broader issue. They also -- it was an unusually heavy -- I'm sorry, unusually merits heavy brief in opposition. Usually, when the government talks about the merits of the issue, they devote two or three pages to try to say their side is right. And I think partly because they had less to say on other things, their argument was very merits heavy. It went on for much longer than that.


      I think this is -- for people who are tuning in for administrative law, this is going to be less interesting, but I'll try to keep this as simple as possible. The guideline says the term -- the guideline there -- it's a prohibition on manufacture, import, export, distribution of drugs. And they said -- they made the argument that prohibiting distribution, that isn't just things that forbid distribution, it also is things that hinder or preclude distribution. If you have a prohibition on attempts and you have a prohibition on conspiracy, well, that also helps the hinder distribution. That argument is just as much of a stretch as it sounds like.


      There were a couple of First Circuit judges who said -- made a very good point that the very same argument could be made about simple possession that if something that would really hinder distribution as if you had a -- as if prevetting simple possession was also a covered offense. But the Supreme Court itself has unanimously, in per curiam opinion, held that simple possession offenses aren't qualifying offenses for this advancement. So it's not an argument that makes a lot of sense.


      Just two other points that I wanted to make, which is that they made the argument that Kisor didn't really need to overrule Stinson. But even though Kisor carved back on Auer deference, it meant to leave all those prior applications intact that's --


Mark Chenoweth:  And Judge Nalbandian in the Sixth Circuit, I think, at some point had made that point too that Stinson deference really sat apart from --


John P. Elwood:  Right.


Mark Chenoweth:  -- Auer deference.


John P. Elwood:  Right. And that it wasn't just a manifestation of Auer, that it was its own thing. So they said it didn't mean to overrule Stinson. But even if that's so, there is at a minimum a circuit split on that because clearly the majority of the Sixth Circuit, though — even though as you said exactly right, Judge Nalbandian said Stinson is different — the majority of the Sixth Circuit says that Kisor did, essentially, undermine Stinson. And the Third Circuit, clearly, seems to indicate that.


      One final thing that I thought was very interesting is that the government argued that the whole -- or one of the main due process reasons why we treat commentary different -- why we treat agency guidance differently than we do regulations is that it's been -- the regulation -- the guideline had been subject to notice and private rulemaking. In the guidelines context, it's also been subject to giving the Congress an opportunity to modify it or overrule it. And they said, hey, as it happens, this guideline was -- the agency -- the Sentencing Commission adopted it after notice and comment rulemaking and they -- as it happens, they sent it up to Congress and said, hey, here is our commentary, just be advised.


      They said this makes it different and kind of reduces the sort of due process concerns here. They say the courts that have ruled against it made a mistake, and they overlooked this. Our answer to that is that they haven't been mistaken about it. They've looked at that, and they decided it didn't matter. Two cases that are most important for this are both out of the Sixth Circuit. And, again, Judge Sutton wrote a separate concurring opinion who looked at that issue and said it doesn't matter and then in an opinion since then Judge Eric Murphy — I think it's Eric Murphy — out of the Sixth Circuit, again, said it doesn't matter.


      And their point was this, that when the law doesn't require it, no one in Congress knows that they're supposed to do anything with it. They may send it up to Congress, but no one in Congress has any sort of aid. There's no statute that says that this is something they should be looking at.


Mark Chenoweth:  Right.


John P. Elwood:  And so it's no different than Congress could overrule an agency regulation but -- or I'm sorry, an agency interpretation of a regulation. The fact that they observe additional procedures doesn't make it tantamount to the regulation -- doesn't make it tantamount to the guidelines. And that's something that Judge Murphy — in a recent opinion issued I think on May 3 — said explicitly, and he also said -- he made the point that even though you observed these processes in the past, there's no statute that requires it so you can overrule them tomorrow without those processes.


      Accordingly, it shouldn't get any extra -- it shouldn't have any extra weight simply because they observed additional processes. One thing that I think that is telling is that the government's frequent opposition said this -- they acknowledge that Kisor is the governing standard here for these sorts of things. And if they really thought that the fact that the Sentencing Commission observed these procedures gave them any extra weight, they wouldn't have said that Kisor is the governing standard. They would have said Kisor isn't even implicated. This is the guideline, pure and simple.


Mark Chenoweth:  Do you think that if the Court takes this case that they're going to be more likely to want to resolve it on some sort of narrow ground? Or do you think that they will address the broader problems with deference that are implicated by what's happened with Stinson deference in this context?


John P. Elwood:  It's very hard to say. On the whole, I really do sort of feel like the Roberts Court is largely a minimalist Court, and they decide sort of the minimum to get the issue resolved. That said, I think there aren't that many narrow ways that occur to me about how to resolve this. It seems like if they think it --


Mark Chenoweth:  Well, they could do what Silverman said, right, on the D.C., and just say --


John P. Elwood:  Oh --


Mark Chenoweth:  -- well, this particular guideline is not ambiguous, and therefore, there's nothing to defer to here — or something — and then leave the deference issue for another day. But --


John P. Elwood:  No, that's --


Mark Chenoweth:  -- I think that'd be disappointing.


John P. Elwood:  It is true. And also -- that is true. It would also be -- they would know that another case would be just down -- coming down the road.


Mark Chenoweth:  Yeah.


John P. Elwood:  Especially because these cases are pending, I think it's just a matter of months until they get more cases coming in on this. It seems like they might as well resolve it in this context because it is such a frequently arising -- it is such an important sentencing enhancement. Again, as I say, this particular guideline applies directly in 1,500 to 1,800 cases per year.


      The same language also is used in a separate sentencing enhancement for the punishments for felons in possession of a firearm. There's the same enhancement for crimes of violence and also controlled substance offenses. That's another 6,500 cases every year on average. So it seems like they might as well address it in this instance because it is one of the most commonly applied sentencing enhancements. Far better this than some sort of uncommon sentencing enhancement that only gets applied a few dozen times a year.


Mark Chenoweth:  Well, that's most of the questions that I wanted to pose. I don't know -- I'm going to look at the Q and A queue here and see if there's something for us. But if there's anything else you wanted to get to first, John, I wanted to give you an opportunity to do that.


John P. Elwood:  One thing, though, that I think is kind of worthwhile to notice here is that this case drew amicus briefs from unusual parties. You ordinarily expect in cert petition brought in a criminal sentencing case you might have an amicus brief from the National Association of Criminal Defense Lawyers. This case drew amicus briefs not only from your organization, the New Civil Liberties Alliance, but also the Cato Institute and, I think, most remarkably, the National Association of Home Builders and the American Farm Bureau Federation, which also, I will note, just -- I think all of those organizations, or at least Cato and Home Builders and Farm Bureau, also filed in the Third Circuit en banc.


Mark Chenoweth:  As did NCLA, and we filed --




John P. Elwood:  It just shows the broader implications of this. The way that the Farm Bureau brief put it, I think, is interesting because they said amici appear in this case because a court that can deploy Auer deference to extend petitioners incarceration by nine years and use the same technique to destroy the subtle expectations of American builders and farmers. The idea is that this, as Judge Thapar said, this is -- alarm bells should be going off if you can use administrative deference to increase -- to deprive somebody of liberty for multiple -- for basically more than three times as long as their ordinary sentence.


      You can justify doing a lot of other things to regulated parties under a lot of other statutes. So it is another important area of administrative law, and as the Sixth Circuit put in another case, [inaudible 38:55], the case with very many -- it's basically a one-syllable word with three vowels in it -- actually, four. Basically, this is the application of important administrative law principles in the criminal law context.


Mark Chenoweth:  Right.


John P. Elwood:  It's an important principle and how you apply it essentially when it matters most.


Mark Chenoweth:  So there's a couple of good questions here. One of them comes from John Dowling (sp), who asks, "Since the guidelines are advisory now, sort of post-Booker, does that immunize them from the mechanics of ordinary statutory construction?"


John P. Elwood:  I don't think so. This is something that was covered a little bit in Judge Bibas's separate opinion in the Nasir case. Judge Bibas became prominent as an academic from writing on sentencing issues, and he talked about this sort of gravitational effect. Even though the guidelines are formally non-binding, they still have a gravitational pull because, essentially, courts more or less have to justify departing from them.


      That's the default, and if all else fails, unless you can say why you're not using them, that's the default. Because of that, typically, courts, at least beneath the Supreme Court, have treated the issues just as important and apply the same principles of construction that are applied to other documents and other obligations.


Mark Chenoweth:  So an anonymous attendee asks if we could repeat the names of the cases on cert and which you think is the most promising for a grant on the question of Stinson versus lenity. I think because the person joined late, they don't realize that there are 13 cases that are pending [Laughter]. I guess you could just mention four or five of them or something like that.


John P. Elwood:  Sure. In more or less -- I think that this is more or less in the order that they came in. I think ours was the first filed with Tabb, Zimmian Tabb, T-A-B-B. The second, and I think the best case name, is Broadway [Laughter]. Again, to the extent that case name matters, we can't compete against you with the name Broadway. Davis is the third one, although that really only raises -- I think that only raises the sentencing guideline issue, not the broader issue of deference. Lovato, L-O-V-A-T-O, Jefferson, Clinton, Thorson, Roberts, O'Neal, Lewis, James, Warren, and Kendrick, so again, 13 briefs. And these are just the ones that we know about.


      Actually, I've looked through the entire docket for Thursday, so I'm pretty sure those are the only 13 we have now, but I think there have got to be more cases in the pipeline, cases that haven't been scheduled for distribution yet because this is -- especially when this issue starts percolating when you have en bancs out of the big courts like the Sixth Circuit and the Third Circuit, it gets everybody out of the woodwork. It gets people raising objections. So I think there'll be kind of an echo effect.


      One thing, there were three important cases decided last Thursday and on Monday and Tuesday. I was struck as I was looking through the Supreme Court's docket this week that there were literally -- there must have been like 150 cases held for those. When you get important issues coming up in the Court, and people know they're coming up through the Court, other petitions come up in droves behind them.


Mark Chenoweth:  I assume a lot of federal public defenders will feel an obligation, or a need, to raise this issue on behalf of some of -- at least some of their clients.


John P. Elwood:  Absolutely. I mean, it seems like, again, any case where the commentary of a guideline plays a role in your defendant's sentence, it seems like that is an automatic thing that's -- you have an automatic means to challenge that now. So I think it will be very interesting to see what happens with this case. The Supreme Court has been very conservative about a lower case being conservative in Brants this term.


      They're still filling up, I think, the December sitting for next term. They don't have that many cases branded, so it's conceivable they'll let this percolate for -- but I think that if they wind up granting in this case that federal public defenders are going to be protectively appealing a ton of these cases, and they're going to be protectively petitioning a ton of these cases because the commentary plays a very important role in determining what every defendant's sentence is going to be.


Mark Chenoweth:  Do you think that'll be limited to the armed career criminal enhancement, or will they be appealing other cases with enhancements that are commentary dependent?


John P. Elwood:  There's definitely other ones. Although, of the cases that I'm familiar with, with this, they're overwhelmingly the career offender one. There's also, though, one involving, I think, child trafficking or something like that. There's an enhancement for that. There was yet another one that was even more obscure. And I think both of those arose out of the Sixth Circuit.


      There are definitely others, but you know, as I say, this is kind of a perfect storm to use the overused metaphor just because it both is a legally deficient commentary or at least a legally questionable comment, and it also makes a huge difference. There are areas of commentary where it may only differ by one or two levels, which one or two levels you may very well wind up in a sentence that was within the sentencing range that the other guidelines -- the other potential guideline range. But when it comes to the career offender provision, you're going to be years longer sentence. So I think it stands to reason that most of these cases will probably -- or many of the cases will involve the big enhancements like the career offender enhancement.


Mark Chenoweth:  John Dowling (sp) asks again -- says, "Overruling Stinson would dramatically impact the entire framework and guidelines in sentencing. Does this consequence-driven concern impact the Court's decision whether to grant cert?" And that kind of goes into some of what you were just talking about with the federal public defenders. Is that sort of impending avalanche something that might give the Court pause? Or do they not really think about that when they're deciding to grant cert, or when to grant cert?


John P. Elwood:  All of these things are just things that you have a sense about after watching the Court for a long time. I think that if the Court had had another very disruptive opinion they'd just done, they might be a little bit more wary here. But I think -- generally, I feel like if they'd had one important criminal sentencing in the last year, and the criminal courts were still digesting that, they might feel wary about that a little bit, or they might at least say let's give it a couple years for things to sort themselves out.


      But my general sense is that they don't -- they looked to the conditional cert criteria about whether there's a split, to whether it's important, and they generally -- a majority of them at least don't think about those sort of practicalities. I just think they really think about the classic cert criteria.


Mark Chenoweth:  This may be another way of phrasing a question that I posed to you earlier about how broadly the Court might want to go here, assuming it grants cert. But I'm wondering if -- a lot of people, I think, had hopes that the Court would do something more robust with Auer deference when it granted cert in Kisor, and it really made Auer deference I think more robust than it had been before, or sort of narrowed its application and say courts really have to do a lot of work before they apply this deference. Is that a potential outcome here?


      Could the Court leave Stinson deference intact but say, hey, there is an ambiguity requirement here. You may not have thought that there was, but you do have to find that the guideline is ambiguous first. Or do you think that they're more likely to maybe deal with the due process and what NCLA called the judicial independence Article III sort of problems with judicial deference in this context?


John P. Elwood:  Definitely. They could look for, as you might say, offramps, where they could resolve this case relatively narrowly, but I think we just literally just say we hold that just as was said in Auer, Stinson requires deference. We remand -- or I'm sorry, requires ambiguity first. We're not going to say whether there's ambiguity here, but remand it to the lower courts to address in the first instance. It's very hard to predict which way they're going to go on that.


      As a long-time Supreme Court watcher, I think that the only thing I can say is that unbalanced every year, there are a couple cases that underperform. People expect the blockbusters, and they're instead decided much more narrowly. Then every once in a while, there's a case that kind of over-performs like the original Apprendi, which was -- there are certain cases that at the time people don't think a thing about them, but they turn out being far more consequential -- or the Crawford cases when you started having to put things to juries. Cases that were for performing -- it's very hard to tell in advance which ones that are going to be --


Mark Chenoweth:  Yeah, absolutely. We have another question in the queue. This one's from Bradford Bogan (sp), "Assuming the Court grants on this and goes defendant's way, how would that affect commentary that narrows broader language in the guideline itself? For example, the high capacity magazine enhancements under the principle firearms guideline."


John P. Elwood:  Well, that's a thing it's -- I guess in that case, you might be getting the government arguing. You might be put in a circumstance every once in a while where if it narrows it unduly, the government may be the people challenging it. Although, usually, since the government has an ex officio member on the Sentencing Commission, and because they're a very important player in front of Congress, they're way more persuasive than most booths. People tend to hear law enforcement -- people on the Hill tend to hear the Justice Department. Usually the --


Mark Chenoweth:  Well, I think the Commission's housed over in the Thurgood Marshall Building, aren't they? The Department of Justice Thurgood Marshall Building --


John P. Elwood:  I believe --


Mark Chenoweth:  -- over next to Union Station?


John P. Elwood:  Oh, that's right. Mm-hmm. Yeah, although I always thought of that as a judicial building, not as a --


Mark Chenoweth:  Okay.


John P. Elwood:  -- Justice Department building. But because of that, there aren't that many -- there's not that much commentary that I'm aware of, at least, that takes a narrow view that the Justice Department would like. It may well be that there are cases where the government argues that there is an ambiguity and that under the plain term of the guideline itself, a sentencing enhancement should be applied and that there shouldn't be deference. Once in a blue moon, we get the government arguing against deference, but it would definitely be the exception, not the rule. The only difference is that you wouldn't be able to involve lenity in that circumstance.


Mark Chenoweth:  Right -- right. And I don't think I pinned you down before. One of the sort of sub-questions here was which case do you think is the best vehicle? And I'm going to go out on a limb here and think that you -- guess that you think that it's Tabb. But if you want to speak to why you think that's the case, I'm happy to hear your answer.


John P. Elwood:  One thing, we made a point -- we filed a supplemental brief because there was a recent decision that kind of drove home a point including that -- both making clearer that the Sixth Circuit was ruling it or was weighing in here not just on the narrow guidelines issues, but on the larger issue about whether Kisor effected Stinson deference. But at the same time, we took the opportunity, since at the time we filed that it had been distributed for conference, to note why we thought that our case was a good vehicle for it. One thing we noted was just that the fact that the government hadn't raised a vehicle problem within our case. And that's kind of the dog that didn't bark.


      The first thing I do is whenever I get the government's brief in opposition is I go through, and I see what they concede. And then once I'm done with what they conceded, I see what they didn't contest. One thing they didn't contest was that ours was a decent vehicle. I think that the Court draws a certain measure of comfort in that because the government is so good at spotting vehicle problems and they're not shy about finding vehicle problems, merely saying, "Ah-ha," they didn't spy vehicle problems is itself a pretty ringing endorsement.


      In addition to that, we noted the other vehicle problems that the Court did spot. As I said, there are two different types of crimes that go into this career offender enhancement: one's crimes of violence, and one is for controlled substance offenses. Two of these cases arise under the crime of violence enhancement, and the government noted that there is an explicit textual enhancement for inchoate offenses in the actual guideline. That is that you don't even have to get to the commentary for the enhancement to be appropriate for crimes of violence. It's right there. It says an attempt to use force. That's what they said. And these are two bad vehicles, so that's one difference.


      Then, we also mercifully -- a later Second Circuit case made the point that -- the issue was raised in our case. They made the point that we raised the Kisor argument. It was brief and argued, even though our opinion didn't explicitly reference that. So we didn't know the issue was raised in our case. I haven't been through all of them, but you'll notice that we didn't throw any cold water on your case [Laughter]. That is another dog that didn't bark.


Mark Chenoweth:  Right -- right. Well, I --


John P. Elwood:  There's a certain [inaudible 54:20] professional courtesy since you filed an amicus brief supporting us [Laughter]. If you do the dog that didn’t bark, there's also we didn't say anything bad about Broadway being a vehicle -- having vehicle problems. And I don’t recall the government raising vehicle problems with your case.


Mark Chenoweth:  No, I don't think so. And so I think that either of those are suitable, or perhaps both. I think there are some other good ones as well. But I think that you mentioned to me before the start of the program today that the government, in its brief in opposition to several of the later cases in the queue, were somewhat abbreviated bios referring back to their arguments in some of the earlier cases. I don’t know if that means anything from the Courts -- or from the pool of Clerks sort of way that they handle these cases. But you would know better than me.


John P. Elwood:  Yeah. Well, just to clarify -- or just to drive this point home. There are 13 of these cases. And I think maybe the first two or three they did full-blown briefs in opposition that were 20, 25 pages long -- really long briefs in opposition. After those, when they started seeing how many of these cases were in the pipeline, they started doing memorandums in opposition, where they were two or three pages long. They gave the facts, and they said -- basically, they incorporated arguments by reference citing the brief in opposition in our case, the Tabb brief, and saying we've provided them a copy of the brief in opposition and otherwise, we're waiving our response.


      I think the noteworthy thing about that is it's basically the government's acknowledgment that there are so many of these cases that they can't do full-blown oppositions, each of them. They have to do it kind of short-form things. When I mentioned to you earlier about how there were 150 cases for these government -- for these cases that were decided last week and this week, and all these cases that were hanging around being held for them, those were overwhelmingly cases in which the government memoranda in opposition. Frequently, the government is filing these memoranda in opposition, but there's a case arriving so frequently it's very hard for them to deny the importance of the issue.


Mark Chenoweth:  Mmm.


John P. Elwood:  Any time you're seeing a memorandum in opposition from the government, it's usually an acknowledgment that the issue arises so much that it inherently had a certain amount of importance.


Mark Chenoweth:  Terrific. Well, we've got just a couple minutes left, so if there's any final thoughts that you have, John, anything you want to summarize, otherwise, we can let Evelyn jump in and wrap us up here.


John P. Elwood:  No, I think I've hit all of the main points. It's a fascinating issue wholly apart from the fact that I have amicus in the matter. Ordinarily, the Court routinely relists cases again, considers them at consecutive conferences because my understanding is that the first time they just decide tentatively, we're going to grant in this. And then they spend the next week more or less kicking the fires and making sure there aren't any problems that would keep them from resolving it.


      They might finalize what the vehicle, do they want to take the case -- assuming they want to do that. Ordinarily, the next thing we'd see usually is there would be no mention of these cases on Monday's order list, and we'd have to wait for one more week in order to find out what's going to happen. That would usually be what happens. So I will be very happy if nothing happens on Monday [Laughter].


Mark Chenoweth:  Yeah, absolutely. If folks are interested in this issue and these cases, I would just invite them to go to NCLA's website at nclalegal.org. We have pages up on at least Tabb and Broadway and Lovato, Nasir, Havis -- so you can learn a lot more about these cases, see a lot of the briefs that have been filed, and so forth. And with that, Evelyn, thanks again to The Federalist Society, but we'll let you wrap us up.


Evelyn Hildebrand:  Wonderful. Thank you both very much for a really fascinating discussion. I'll just say -- I'll extend the thanks of The Federalist Society to our experts and the benefit of their valuable time and expertise today. I want to thank our audience for participating and sending in your questions. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.