Courts Must Not “Reflexively Defer” to Sentencing Guidelines Commentary—Follow the Rule of Lenity

Posted On Tuesday, November 30, 2021
By: Daniel P. Wotherspoon

Takeaway: 

Five more judges on the U.S. Court of Appeals for the Third Circuit agree with their colleague that courts must not “reflexively defer” to the U.S. Sentencing Guidelines commentary and should instead follow the rule of lenity by resolving ambiguities in rules in favor of defendants.


On Monday, November 8, 2021, a five-judge panel from the Third Circuit Court of Appeals agreed with the prior opinion of their colleague Judge Stephanos Bibas that courts must not “reflexively defer” to the U.S. Sentencing Guidelines commentary and should follow the rule of lenity by resolving ambiguities in rules in favor of defendants.

The five-judge panel upheld the conviction but vacated the sentence of Malik Nasir, who had been sentenced to 210 months in prison on drug and firearms charges after he was found to be a “career offender” under the U.S. Sentencing Guidelines. The judges reasoned that the “career offender” enhancement should not have been applied to Nasir since one of his prior convictions was for an inchoate offense and only the interpretive commentary to the Sentencing Guidelines, not the Guidelines themselves, included inchoate offenses in the career offender calculation.

Since 1993, judges around the country have followed Supreme Court precedent in Stinson v. United States that judges must defer to commentary interpreting the Guidelines unless it is “inconsistent with” or a “plainly erroneous reading” of that guideline. In 2019, however, the Supreme Court issued a decision in Kisor v. Wilkie in which it held that courts should only defer to agency interpretations, like the Guidelines commentary, in the event that a regulation is “genuinely ambiguous.”

Judge Bibas wrote in his earlier opinion that, under Kisor, courts must be prepared to “exhaust our legal toolkit” when confronted with an ambiguity rather than immediately deferring to commentary the moment the ambiguity arises. According to the rule of lenity, this is especially true in cases such as that of Malik Nasir, where deference to interpretive commentary would increase a criminal penalty. The Circuit Courts are currently split on the issue. The Third, Sixth, and D.C. circuits have ruled that lower courts do not owe deference to the interpretive commentary to the extent it expands the scope of the Guidelines. The First and Eighth Circuits on the other hand have continued to follow Stinson. While the Supreme Court has yet to take up the issue, the fact that six judges in the Third Circuit have now found that Kisor limits Stinson and the increase in sentencing inconsistencies due to the circuit split may spur it into action.