Posted On Tuesday, November 30, 2021
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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.
Posted On Wednesday, November 10, 2021
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Takeaways:
Relying on old and new guidance, the Department of Justice will consider the following when addressing misconduct by corporate entities:
- Disclosure of ALL information about individuals involved in the misconduct
- Consideration of ALL prior acts of misconduct
- Use of Independent Monitors
Priorities and actions: While addressing attorneys at the American Bar Association’s White Collar Crime Institute recently, Deputy Attorney General Lisa Monaco laid out the Department’s “enforcement priorities” and three actions she believes will deter corporate crime. The Department’s enforcement priority must be to “enforce the criminal laws that govern corporations, executives, officers and others” Monaco said. With those priorities in mind, Monaco outlined three actions the Department will take to “hold individuals and corporations accountable for their misconduct” when negotiating a resolution to an investigation:
- require companies to provide the Department with all information about individuals involved in the misconduct at issue;
- consider all prior acts of misconduct of individuals and companies when evaluating the proper form of resolution; and
- restore the guidance relating to the use of independent monitors when the Department feels it is appropriate to ensure compliance with a DPA or NPA.
Monaco’s three actions are intended to be bold, but they are not necessarily new actions. Rather, the actions represent a return to priorities that emphasize corporate and individual accountability. In 2015, then Deputy Attorney General Amy Yates circulated a memo (the “Yates Memo”) outlining certain requirements for companies hoping to receive consideration for cooperation. The Yates Memo directed companies to completely disclose all relevant facts about individual misconduct. This mandate was intended to stop the notion that companies could ‘pick and choose’ which facts to disclose. A 2018 Memo softened this requirement, and only required disclosure of those individuals “substantially involved” in the misconduct. Three years later, Monaco says “It is no longer sufficient for companies to limit disclosures to those they assess to be ‘substantially involved’ in the misconduct.’”
The Department has always looked at certain prior misconduct when considering corporate resolutions. Now, prosecutors will consider the full range of prior misconduct, whether related to the misconduct being actively investigated or not. This “broader view of companies’ historical misconduct will harmonize the way we treat corporate and individual criminal histories” Monaco explained.
Finally, Monaco’s effectively rescinded prior guidance that monitorships should be the exception and not the rule. When the corporate culture of a corporation is called into question, the Department will require independent monitors as a tool to encourage and verify compliance.
To read Monaco’s full speech, click on the following link: https://www.justice.gov/opa/speech/deputy-attorney-general-lisa-o-monaco-gives-keynote-address-abas-36th-national-institute
