In Beaird v. United States, argued on Tuesday, Oct. 13, the Supreme Court considered when courts should defer to the U.S. Sentencing Commission’s commentary interpreting the federal sentencing guidelines. More specifically, the question presented in Beaird is whether the court’s 1993 decision in Stinson v. United States still correctly describes the appropriate deference required. Under Stinson, commentary that “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.” By a wide margin, 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
In recent years, 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.
Because the government agreed that Kisor limited Stinson to some extent and advocated for a remand, the court appointed an amicus, Anthony Dick, to defend the judgment. The amicus argued that, as a general matter, agency deference should be viewed as subject to even more stringent limitations than Kisor endorsed. Dick maintained that 2024’s Loper Bright Enterprises v. Raimondo, which discarded the court’s prior doctrine deferring to agencies’ interpretations of statutes they administer, further limits deference to agencies’ interpretations of their own statutes and undercuts Kisor. But despite his challenges to Kisor, the amicus maintained that, principally because the guidelines are now advisory, deference to the commentary under Stinson falls entirely of outside the framework that limits deference to agency interpretations.
Kevin Page, the attorney for Kendrick Jarrell Beaird, squarely rejected the amicus’ view that advisory guidelines are not subject to the general rules governing agency deference, and contended that the commentary is entitled to no deference at all.
The justices’ questions at oral argument
Although whether Loper Bright limited or undermined Kisor featured in a few questions, particularly from Justice Neil Gorsuch, the justices conveyed little interest in using this case to revisit Kisor. Chief Justice John Roberts, the author of Loper Bright, 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 that sentiment.
Along those lines, many of the justices’ questions zeroed in on the advisory nature of the guidelines, which to them took the case out of the ordinary context of agency deference. As noted, near the beginning of Page’s argument, Roberts remarked that “the guidelines are advisory,” and that the question of deference to the commentary therefore “str[uck him] as an academic exercise.” Why shouldn’t courts “just look at what the commission meant in the guidelines” and then exercise their discretion?
As a number of justices similarly noted, when a court defers to the commission’s interpretation of the guidelines through the commentary, the sole effect of that deference is to determine what the commission’s recommendation is. A federal court is not obliged to follow that recommendation. Near the end of nearly two hours of argument, Dick recapped this point in response to a question from Justice Ketanji Brown Jackson, a former vice chair of the Sentencing Commission. Dick agreed that the commentary is “binding on what the commission’s advice means. It's not binding in the sense that courts have to follow it.”
Justice Amy Coney Barrett raised another point at argument, that the commission frequently sends its commentary through the same notice-and-comment process as the text of the guidelines. She asked Page whether it was his “sense that the commission, by calling this commentary, is somehow pulling a fast one, getting things into the commentary that it might not be able to put into the guideline itself?” Page denied that the commission was engaging in such a ploy and emphasized that his central arguments rested on whether Congress had expressly authorized the commission to issue its commentary. He argued that Congress had not.
Turning to workability concerns, Justice Sonia Sotomayor addressed the guideline at issue in Beaird’s specific case. For his firearm offense, the applicable guideline, Section 2K2.1, increases the commission’s recommended guideline range when the defendant’s offense involved a “semiautomatic firearm that is capable of accepting a large capacity magazine.” A broad reading of “capable,” Sotomayor noted, would mean that the sentencing enhancement could apply if a defendant’s gun merely were able to accept such a magazine, even though the defendant did not have one. Sotomayor noted that “it’s only by reading the application note do I know that the magazine has to be attached to” the defendant’s gun or in close proximity to it to fit under Section 2K2.1. “Without the application note,” she remarked, “you’re creating a sea of confusion for district judges to fill in the blanks.”
Justice Samuel Alito echoed Sotomayor’s point and asked Page how a district judge would decide what the phrase “large capacity magazine” means without the commentary explaining that. Page responded that you “use… the text and structure of the guidelines.” Page continued that the word “large” means “large for a semi-automatic firearm” and that a magazine that held 17 rounds “is the average” and shouldn’t be deemed large. Alito followed up that his “methodology would be to examine all semi-automatic weapons and see what is the average,” and “whatever is above the average that … would be the large capacity magazine?” Page rejected “that something that’s just above the median would necessarily qualify.” Alito remained skeptical: “I just don’t see how this could possibly work without some degree of deference to what is essentially a policy call by the Sentencing Commission.”
Addressing a consideration relevant to stare decisis, Justice Elena Kagan and Sotomayor both pressed Page about whether under his view a court would be required to overrule Williams v. United States, which, in Kagan’s words, indicated that “the commission needs to defer to the commission's policy statements.” Page argued that Williams should be viewed as limiting deference only to certain policy statements that Congress expressly referenced in various statutes. Kagan and Sotomayor seemed unpersuaded that Williams could be properly read in that way.
Only Gorsuch appeared open to revisiting Kisor. As he remarked at one point, “Stinson relied on silence being enough to be an implicit delegation … of interpretive authority and that their ambiguity is the appropriate trigger, both of which we've since rejected in Loper Bright.” But none of the other justices seemed particularly interested in adopting such a position.
Eric J. Feigin, arguing on behalf of the government, defended the view that Stinson’s rule must be understood in light of Kisor, explaining that the government believed that approach best fit the court’s precedent. Nevertheless, Feigin made clear that “if the court wants to say that the guidelines don’t need to follow Kisor,” the government would “be very happy with that.”
Exactly how the court will ultimately describe the outer limits of deference to the commentary is unclear. But there seemed little doubt that the court would leave Stinson essentially as it has been understood since it was decided in 1993 and that the court’s ruling would be strictly limited to the context of advisory sentencing guidelines.
