Before imposing a sentence on a federal criminal defendant, a district judge must apply the federal sentencing guidelines for the defendant’s offense and criminal history and take into account the sentencing range recommended by those guidelines, along with a host of other factors. In Beaird v. United States, which will be argued on Tuesday, Oct. 13, the Supreme Court will consider the degree of deference that courts owe to the commentary that the U.S. Sentencing Commission provides for applying the guidelines.
Some background
More than thirty years ago, in Stinson v. United States, the court drew upon precedent that analyzed the deference that courts owe to an agency’s interpretation of its own regulations and applied those standards to the commission’s commentary interpreting a sentencing guideline. The court held that commentary which “interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”
More recently, in a major test of deference to agencies’ interpretations of their own regulations, the court ruled in a 5-4 decision, Kisor v. Wilkie, that courts must defer to an executive agency’s interpretation of its regulations, subject to a number of limitations, including that the regulation must be genuinely ambiguous on the question at issue.
In Beaird, the question presented is whether Stinson still correctly captures the deference that courts must give to the guidelines’ commentary. The degree of deference matters because a significant amount of detail about how the sentencing guidelines should be applied is found in the commentary, covering the gamut of federal crimes from fraud to firearm offenses.
The sentencing issue in Beaird
Because Beaird will address a broad, general rule about when courts defer to the commission’s interpretations of guidelines, the specifics of Kendrick Jarrell Beaird’s case do not feature much in the briefs and may not in the oral argument or decision either. But as the court said in Kisor, “the facts and proceedings below at least show[] how the question presented arose,” making the issue before the court somewhat less abstract.
In October 2022, officers saw Beaird point a firearm at another person in an abandoned fast-food restaurant. After arresting Beaird, officers found that his gun, a Glock, had a magazine capable of holding 17 rounds. Because Beaird had four prior felony convictions, he was charged with and pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). That offense is subject to the guideline in Section 2K2.1. Under Section 2K2.1(a)(3), the guidelines recommend a higher sentence if the defendant’s offense “involved” a “semiautomatic firearm that is capable of accepting a large capacity magazine.” The question then becomes whether a magazine that holds 17 rounds is a “large capacity magazine.” The text of Section 2K2.1 does not define that phrase, but the commentary to the guideline does, defining a large capacity magazine as including “a magazine … that could accept more than 15 rounds of ammunition.”
The commission often provides a greater level of specificity like this in the commentary as opposed to the guidelines. And thus, here, the question about deference in Beaird boils down to whether a court should defer to the commission’s view that a magazine that holds more than 15 rounds is a “large capacity magazine.” Or to frame the issue in terms of Kisor, should the meaning of the phrase “large capacity magazine” be deemed ambiguous, raising an issue on whether a court owes deference to the commission’s view that a magazine holding more than 15 rounds qualifies? The guidelines and commentary raise countless issues like this across the range of federal criminal cases that courts handle.
In Beaird’s case, the district judge followed the guidelines in finding that Beaird had a large capacity magazine, but also said that “even if the guideline range was not correctly calculated or applied correctly,” the court “would have imposed the same sentence” as the court explained at sentencing. Beaird’s sentence was affirmed in a brief opinion on appeal, which concluded that the guideline range was correctly determined and relied on prior precedent applying Stinson to interpret Section 2K2.1.
Three views of deference to guideline commentary
Because the solicitor general concluded that precedent from the U.S. Court of Appeals for the Fifth Circuit extended deference under Stinson too far, the government supported a remand. The Supreme Court therefore appointed an amicus to defend the judgment. Beaird, the government, and the amicus each offer the court a distinct position on Stinson’s vitality and breadth after Kisor.
Beaird argues that courts should afford no deference to the commentary. The commentary either provides the best interpretation of the guidelines or not on his view.
The government argues that Stinson properly understood is consistent with Kisor, which merely clarified some limits on courts’ deference to agency interpretations. But because the government contends that the lower court’s precedent ignored Kisor’s limits, the government supports a remand, even if under a correct application of Stinson, the result in Beaird’s case would not be different.
The amicus for its part suggests that Kisor itself may have taken agency deference too far but also defends a broad reading of the deference required by Stinson.
One point that Beaird emphasizes in seeking to reject deference under Stinson for the guidelines commentary across the board is that the commentary would alter criminal punishment, which regulations (as opposed to statutes) generally are not themselves meant to accomplish. In seeking to limit deference, he also draws upon doctrines specific to the criminal context that protect criminal defendants, such as the rule of lenity. The rule of lenity requires adopting an interpretation that favors a defendant when a statute that defines criminal conduct or punishment is grievously ambiguous.
The parties and amicus also confront some other acknowledged features of the guidelines that distinguish them from the usual context in which agency deference arises. Most notably, the commission published, promulgated, and submitted to Congress both the text of Section 2K2.1 and the commentary at the same time and received public comment on both the guideline text and the commentary. Although the commission does not always follow this full process for the commentary, often the commission does, and when it does, both the guideline and the commentary may be analogized to a regulation itself. The government and amicus both raise this point as a limit on discounting the role of the commentary. Beaird’s main response is that there is insufficient congressional authorization to delegate to the commission interpretive authority for its own guidelines through commentary, so an identical process for creating guidelines and commentary makes no difference.
Another feature of the guidelines that bears the extent of deference, at least as a practical matter, is that, under 28 U.S.C. § 994(o), the commission must “periodically … review and revise” the guidelines to resolve disagreements on their application, a feature of the statutory scheme that both the government and the amicus note and which allows the commission to reject appellate precedent interpreting the guidelines. Indeed, that statutory duty has led the Supreme Court to rule that, generally, it will leave to the commission resolving lower courts’ disagreements over how to interpret a guideline provision. But no such comparable rule exists for review of executive branch regulations. It would thus seem anomalous for the court to conclude that Congress expected courts give no deference to the commission’s interpretation of ambiguous guidelines even though Congress expressly authorized the commission to reject interpretations it thinks are wrong.
Another distinguishing feature of the guidelines is that they are advisory only and merely guide judges, which is not generally true of agency regulations. The government’s argument does not place great weight on the advisory status of the guidelines and instead stresses that Stinson’s test readily coheres with Kisor’s rule. The amicus in contrast builds more of a defense of Stinson’s deference from the guidelines’ advisory status, reasoning that an agency’s interpretations that are advice only do not pose the same dangers that an agency’s interpretation of a binding regulation would create.
Both Beaird and the amicus raise one point that, if the court were to pursue in this case, could result in a ruling that reaches far beyond federal sentencing. Drawing on Loper Bright Enterprises v. Raimondo, both Beaird and the amicus question the role that ambiguity in a regulation played in ushering in agency deference under Kisor. In Loper Bright Enterprises, the court addressed deference to an agency’s interpretation of a statute and rejected authorizing agency deference because of ambiguity in a statute. But the justifications for deferring to an agency’s interpretation of regulations that the agency itself writes differ from those of deferring to its interpretation of a statute that Congress enacted.
Because of the quantity of guidance found in the commentary, the court’s ruling defining deference to the commentary will immediately feature in a great deal of cases. But determining the consequences of the court’s ruling is more complex. As the government notes, courts of appeals agreeing with the government’s approach have applied Kisor to the commentary interpreting a “large capacity magazine” and upheld the commentary’s view. But it is less clear what those courts would say under Beaird’s rule. And any ruling from the court that seriously undermined the role of the commentary would likely force the commission’s hand to revise the guidelines so that they either leave less of the content of sentencing guidelines in the commentary or even dispense with separate commentary altogether.
