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July 17, 2024
"Post-Chevron, Good Riddance To The Sentencing Guidelines"
The ttile of this post is the title of this notable new Law360 commentary authored by Mark Allenbaugh, Doug Passon and Alan Ellis. The extended piece covers a lot of ground at the intersection of administrative law and the guidelines, and here is a snippet from its first section:
The Supreme Court's decision in Loper Bright Enterprises v. Raimondo, overturning the Chevron doctrine, raises a critical and long overlooked question: What, if any, deference is now owed to the guidelines themselves?
Over the past few years, significant splits have developed among many federal district courts and appeals courts with respect to the deference courts should afford both to the guidelines proper, and to their commentary.
Loper Bright is certain to add to the disarray. Accordingly, it is imperative that the court step in quickly to resolve this building crisis.
We argue that, in their current form, the guidelines should not be afforded any deference for two primary reasons. First, although the guidelines were originally designed to be binding, their binding nature has since been ruled unconstitutional. Yet the commission has not revised the guidelines to account for their now-advisory nature.
Second, in their current form, they actually promote the exact opposite of the various policy goals they were intended to achieve — namely, to provide certainty, proportionality and uniformity in sentencing, while taking into account the population capacity of the Federal Bureau of Prisons.
Prior related post:
July 17, 2024 at 01:54 PM | Permalink
Comments
I largely agree with the authors -- or perhaps I should say they've come around to agreeing with me. For a walk down memory lane: https://sentencing.typepad.com/sentencing_law_and_policy/2011/06/the-slow-sad-swoon-of-the-sentencing-suggestions.html
Posted by: Bill Otis | Jul 17, 2024 8:19:16 PM
I think the Law360 article badly misses the mark. First, Loper Bright is grounded in a construction of the Administrative Procedures Act, but the Commission, being an agency in the Judicial Branch not in the Executive Branch (as upheld in Mistretta), does not promulgate its Guidelines under the APA, nor are sentences imposed under the Guidelines reviewed by judges pursuant to the APA. Second, Loper Bright concerns the relative authority of agencies vs judges to resolve ambiguities in statutory language, but the Supreme Court has never applied Chevron deference to the Commission's guidelines or commentary in such cases, as we known from the Neal and LaBonte cases (I know this in particular, having co-written the losing brief in LaBonte before the Supreme Court).
Even if Loper Bright somehow did apply to the USSC, it would not cast doubt on the Guidelines themselves in any event, which are not exercises in interpretation of ambiguous statutory language; rather, they are promulgated pursuant to an express statutory delegation of authority (and then laid before Congress for potential disapproval). The Loper Bright opinion explicitly distinguishes between agency regulations that interpret ambiguous statutes -- which it holds, overruling Chevron, are not subject to deference -- and those that carry out express statutory delegations, like the guidelines and most policy statements, which are to be upheld if they reflect "reasoned decisionmaking" within "the boundaries of the delegated authority" (144 S.Ct. at 2263).
The judicial deference to the Commission's work that is controversial these days is the weight to be given Commentary that explains the formal guidelines, which is more like the "Auer/Kisor deference" that applies to an agency's interpretation of its own regulations (other than the fact that it is not governed by the APA) not "Chevron," which applies to interpretations resolving ambiguities in statutes. Kisor may or may not cast doubt on Stinson, but that has nothing to do with Chevron and Loper Bright. So, while a lot of the criticisms of the Guidelines laid out in the Law360 article are certainly well-taken, its comments on the importance of the Loper Bright decision are completely off base, as far as I can see.
Posted by: Peter Goldberger | Jul 18, 2024 4:19:20 PM
Thanks so much for your comments, Peter, which capture some of my concerns with the Law360 commentary. But I wonder if you think there may be something to the idea that, after Loper Bright, there may be a stronger argument that certain guidelines that seem to fail to implement certain statutory directives --- eg, guidelines that fail to "reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense," 28 USC 994(j) --- ought no longer serve as the starting point/benchmark for sentencing decision-making.
Put another way, if defendants in particular cases can make strong claims that the guidelines in their case is outside the boundaries of delegated authority by pointing to specific contrary statutory commands, is it not sensible to argue to a court that ignoring the guideline is the best means to "independently interpret the statute and effectuate the will of Congress subject to constitutional limits"? I doubt many lawyers will have much success in many cases urging judges to completely ignore the guidelines, but if there is a compelling case that a particular guideline in a particular case is inconsistent with a statutory directive, I would think Loper Bright provides even more support for what might be called an argument for "guideline free sentencing" in some instances.
Just thinking out loud here, and eager for many more thoughts on these fronts.
Posted by: Doug B | Jul 18, 2024 7:53:19 PM
There's be more interest in this post if the post wasn't locked behind a access wall requiring registering with a professional email address. Some people are retired.
Posted by: Schemderalist | Jul 19, 2024 9:52:11 AM
Schemderalist: I always try to find a non-paywalled version of items when I can, and even some of us not yet retired have similar frustrations.
Posted by: Doug B | Jul 19, 2024 9:54:54 AM
Prof Berman -
Congress told the courts to draft Sentencing Guidelines. Are you suggesting Congress has to provide by statute each are in which Guidelines are needed?
Posted by: Anon | Jul 19, 2024 11:46:59 AM
I am not sure I fully understand your question, Anon, but I will try to expand on what I am suggesting. Suppose in Congress' instruction to the Commission, Congress said expressly in statute that "no guideline should recommend a sentence longer than 10 years for a person with no criminal history who has not caused death or bodily injury." Then imagine a first offender in an economic fraud case with much "intended loss" leading to his guideline range being roughly 20-25 years. Arguably, even before Loper Bright, perhaps a judge could have rejected the guideline as inconsistent with the statutory instructions. But I think it is not crazy to suggest this argument gets stronger after Loper Bright.
But, of course, the statutory instruction to the USSC in 28 USC 994(j) is much more ambiguous, as it says in full: "The Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense, and the general appropriateness of imposing a term of imprisonment on a person convicted of a crime of violence that results in serious bodily injury." My sense is, because this instruction is vague and ambiguous in various ways, it was hard in a Chevron world, for a fraud defendant who claims to be a "first offender who has not been convicted of a crime of violence or an otherwise serious offense" to argue that the USSC misapplied statutory instructions when his guideline range ended up at, say, 5-7 (or even 20-25) years of imprisonment. But maybe that argument is now a bit stronger in light of Loper Bright.
I am not seeking to make strong claims here, Anon, I am just making the basic point that arguments that the guidelines fail to comply with statutory instruction seem at least a bit stronger after Loper Bright.
Posted by: Doug B | Jul 19, 2024 12:37:52 PM
Yes, Doug, I agree with your response to my comment, and the example you give (994(j)) is very apt and well-chosen to make your point. A guideline that does not reasonably implement a specific statutory directive is very different from questioning the Guidelines as a whole, as an implementation of the broad delegation in 994(a)(1), (b)(1) & (c)(2),(3) or (6), for instance. Another good example, it seems to me, is the Commission's failure to meaningfully implement 994(a)(1)(A) (criteria for when probation would be appropriate).
Posted by: Peter Goldberger | Jul 19, 2024 2:42:28 PM
994(j):
The Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence OR AN OTHERWISE SERIOUS OFFENSE
"Otherwise serious offense" is part of a statutory directive and is about as vague/subjective as a phrase can be.
So couldn't Loper Bright be applicable in an argument that by advising only a term of imprisonment for many non-violent offenses, the Commission had made decisions about what constitutes an otherwise serious offense, and that interpretation is unreasonable? Or do y'all think that Loper Bright clearly only touches regulations promulgated under the APA?
Posted by: In2TheLaw | Jul 20, 2024 8:56:18 AM
I am a student. Pardon my intrusion up on your discussion. Since you are talking about following the statutory directive, I was wondering also about 994(h) which directs the commission to establish guideline ranges "at or near the maximum" for categories of defendants described there. When the commission created the guidelines range for the career offender, does it give the commission the authority to modify the specific numbered sections of the statute to expand the definition described there also?
Posted by: Jason | Aug 17, 2024 2:02:21 PM
