Sixth Circuit panel debates agency deference for guideline commentary defining images for child porn sentencing

How Appealing and Jonathan Adler at The Volohk Conspirary both posted about a notable new Sixth Circut panel opinion in US v. Phillips, No. 21-5762 (6th Cir. Nov. 28, 2022) (available here).  Here is how the majority opinion, which runs 17 pages, gets started:

When it passed the PROTECT Act in 2003, Congress required the United States Sentencing Commission to vary penalties for child-pornography offenses depending on the number of images involved.  The Commission accordingly implemented that method of calculating penalties in the Sentencing Guidelines.  Addressing what it perceived to be an ambiguity in Congress’s command, the Commission added an application note in the Guidelines commentary instructing courts to equate one video to seventy-five images when calculating the applicable Guidelines sentencing range.

For almost twenty years, courts have relied on this “75:1 Rule” when sentencing defendants convicted of possessing videos containing child pornography.  Recent Supreme Court precedent, however, has clarified when courts can defer to an agency’s interpretation of its regulations (by applying so-called Auer deference).  Defendant-Appellant Trinity Phillips argues that this recent clarification means that a sentencing court can no longer rely on the 75:1 Rule, and that the court erred in relying on it when imposing his sentence.  We disagree and affirm that sentence as imposed by the district court.

Concurring in the judgment only, Judge Larsen authors an 18-page opinion that starts this way:

How is a court to respond when the question before it involves the interpretation of an agency rule?  Over decades, we lower courts developed a habit of deferring reflexively to the agency’s interpretation under Seminole Rock and Auer, rather than first tackling the interpretative question ourselves, to see whether the rule was “genuinely ambiguous.” Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019).  Three years ago, the Supreme Court told us to stop.  The Court did not mince words: “[T]he possibility of deference can arise only if a regulation is genuinely ambiguous.  And when we use that term, we mean it — genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation.” Id.  In United States v. Riccardi, this court confirmed that Kisor’s admonition applied to the Sentencing Guidelines too. 989 F.3d 476, 486 (6th Cir. 2021).  These were important decisions.  They reminded us that judges have a duty to interpret the law, even when administrative agencies are involved.  But old habits are hard to break.  Today’s decision is proof.  No fair reading of Kisor and Riccardi would permit us to defer to the Sentencing Commission’s conclusion that the word “image” means 1/75th of every video.  Nevertheless, the majority opinion rolls right through Kisor’s stop sign, reflexively deferring to an agency’s noninterpretation of an unambiguous Sentencing Guideline.  So I concur in the judgment only.