En Banc Fifth Circuit Takes Sides in Circuit Split Over Deference to Sentencing Guidelines Commentary

Thirty years ago, in Stinson v. United States, 508 U.S. 36 (1993), the Supreme Court held that commentary in the Sentencing Guidelines Manual, created by the United States Sentencing Commission, is generally binding on courts. The commentary interprets or explains a specific guideline. The Court held that commentary is not binding only if it violates the Constitution, a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline. In reaching that conclusion, the Court analogized deference to the commentary to Seminole Rock deference—the deference that (back then, at least) courts afforded agency interpretations of their own ambiguous regulations. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). The Stinson Court acknowledged, however, that the analogy was imperfect. “[U]nlike a legislative rule, [commentary] is not the product of delegated authority for rulemaking, which of course must yield to the clear meaning of a statute.” Commentary, by contrast, “explains the guidelines and provides concrete guidance as to how even unambiguous guidelines are to be applied in practice.” 508 U.S. at 44.

Much has changed in the years since. The Sentencing Guidelines are no longer binding after Booker v. United States, 543 U.S. 220, 234 (2005). And in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the Court clarified “some mixed messages” it had sent in Seminole Rock regarding deference to agency interpretations of legislative rules. In particular, by affording deference to an agency interpretation unless it is “plainly erroneous or inconsistent with the regulation,” Seminole Rock arguably “suggest[ed] a caricature of the doctrine, in which deference is ‘reflexive.’” Kisor modified Seminole Rock by, among other things, holding that courts may not defer to an agency’s interpretation “unless the regulation [at issue] is genuinely ambiguous.”

While Kisor characterized Stinson as one of the “legion” of cases “applying Seminole Rock,” it did not say whether it intended its new, less-deferential standard to govern Stinson cases going forward. That question has given rise to a growing circuit split, with the First, Second, Fourth, Seventh, and Tenth Circuits holding that Stinson continues to govern judicial deference to the Sentencing Commission’s commentary to its own Guidelines, while the Eleventh, Ninth, Sixth, and Third Circuits hold that Kisor modified the Stinson framework.

In United States v. Vargas, No. 21-20140 (Jul. 24, 2023), for at least four reasons, the en banc Fifth Circuit sided with the Tenth and Fourth Circuits in holding that Stinson continues to control judicial sentencing. First, it explained that nothing in Kisor suggests it meant to modify Stinson. While Kisor did mention Stinson in a footnote, that footnote was “merely descriptive,” and, in any case, was joined by only a plurality of the Court.

Second, the majority emphasized that Stinson deference “differs from Seminole Rock in important ways.” Stinson held, for example, that the commentary controls even unambiguous guidelines, whereas Seminole Rock required deference only when the regulation at issue was ambiguous. And under Stinson, the Commission can interpret a guideline in ways that conflict with prior judicial interpretations. “Not so with agencies,” according to the majority.

Third, the Sentencing Commission and administrative agencies “are different animals,” and “[t]he Commission is a peculiar institution within our tripartite system of government.” Vargas, No. 21-20140, at 10 (citations omitted). Stinson itself cautioned that the analogy between the two was “not precise.” 508 U.S. at 44. Whereas administrative agencies are thought to be creatures of the executive branch, the Commission “lodges within the judicial branch.” 28 U.S.C. § 991(a). The President nominates the Commission’s seven members and the Senate must confirm them, and at least three must be federal judges. Thus, “while the role of other federal agencies is typically executive, the Commission is judicial in nature.” Vargas, No. 21-20140, at 11 (citations omitted).

Fourth, a core function of the Commission is avoiding unwarranted sentencing disparities. The commentary advances that goal by amplifying and explaining how courts are to apply the guidelines. This animating purpose would be frustrated if Kisor’s more complex and less-deferential framework controlled. For these reasons, the majority was confident that the mere fact that Stinson built on Seminole Rock did not mean that Kisor’s modification of Seminole Rock also modified Stinson.