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July 9, 2022

Kisor role: how often is deference to the federal sentencing guidelines' commentary litigated?

In addition to starting with a terrible pun, the title of my post reflects my uncertainty about how much to make of the (slow-burn) uncertainty regarding application of the federal sentencing guidelines' commentary.  It is now over three years since the Supreme Court in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), recast for federal courts "the deference they give to agencies ... in construing agency regulations."  The Kisor case had nothing to do with the federal sentencing guidelines, but lower courts have since grappled with whether and when Kisor means that the commentary to the guidelines no longer should always be followed.    

This Kisor question is on my mind because a helpful colleague made sure I did not miss the Third Circuit's work last week in US v. Adair, No. 20-1463 (3d Cir. June 30, 2022) (available here).  The panel in Adair does a thorough job explaining how Kisor has been understood (by some circuits) to recalibrate whether and how sentencing courts must show deference to the the guidelines' commentary.  But so far a majority of circuits have not read Kisor to require changing the general tendency to treat guidelines' commentary as binding just like the actual guidelines (as the Supreme Court suggested back in Stinson v. US, 508 U.S. 36 (1993)). 

I flagged this issue in this post last year noting a big Sixth Circuit ruling, US v. Riccardi, 989 F.3d 476 (6th Cir. 2021), which held that certain commentary was an "improper expansion" of the meaning of "loss" in a fraud case.  I thought the Riccardi ruling could lead to lots of Kisor-impacted litigation because many fraud cases involve commentary that arguably expands on the guideline term "loss."  And yet, this issue recently merited only a single footnote in the USSC's recent "Loss Calculation" Primer, leading me to think this issue is not actually being litigated much. 

I know there have been at least a few cert petitions urging the Supreme Court to take up what Kisor means for the guidelines and their commentary, but perhaps the Justices do not yet see this issue roiling the lower courts enough to demand its intervention.  That said, I have noticed that a number of recent student notes on this topic:

So, dear readers, it is mostly law students spending lots of time on this intricate issue or are a lot more litigants and lower courts grappling with this Kisor role than I can see?

July 9, 2022 at 05:14 PM | Permalink


In United States v. Beebe, 21 CR 197 (EDNY), a fraud case, the district court ruled at sentencing that Kisor applied to the Guidelines, did not apply the Application Note to the fraud Guideline, and did not include intended loss in the Guideline calculation.

Posted by: anon | Jul 10, 2022 1:43:31 PM

Thanks, anon. I suspect there are lots more (unreported) cases out there. I especially wonder if anyone is trying to track when and how often these issues are being actively (and impactfully) litigated.

Posted by: Doug B. | Jul 10, 2022 7:14:44 PM

My sense is that not many criminal practitioners are either prepared or willing to engage on the administrative law battle. I see some CLEs being taught (mainly by FPDs) about how to litigate this issue in the context of the career offender (i.e., don't include the inchoate offense priors).

But that's largely it. You do not see the criminal defense Bar writ large making these challenges. I think it's mostly a matter of criminal attorneys (generally) not having a strong civil litigation background. That's just my theory, but these structural types of challenges are just not on the radar of most of practitioners.

Posted by: Zachary Newland | Jul 11, 2022 10:38:10 AM

Federal defenders are vigorously litigating Kisor issues. Look for an opinion in the en banc Dupree case in the 11th Circuit in the next few months. The government conceded at oral argument that Kisor applies to the Guidelines, which some of the judges didn't seem inclined to accept. There were lots of questions about Stinson versus Kisor.

Posted by: defendergirl | Jul 12, 2022 4:30:03 PM

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