The Supreme Court’s overruling of administrative deference under Chevron[1] in its decision in Loper Bright Enterprises v. Raimondo[2] has far reaching effects on many areas of law. One area that might be overlooked is its potential impact on the United States Sentencing Guidelines.
The United States Sentencing Commission (the “Commission”) was first created in 1984. It consists of seven voting members appointed by the President and confirmed by the Senate. The U.S. Sentencing Guidelines (the “Guidelines”), drafted by the Commission, determine the sentencing guideline range for every federal offense.
The Guidelines have a long and varied history in American criminal jurisprudence. Congress initially designed the Guidelines to be mandatory.[3] Any sentence that was outside of the Guidelines was considered per se prohibited.[4]
Then, in 2005, the Supreme Court decided United States v. Booker,[5] Booker had the effect of making the Guidelines advisory. However, despite their status as “advisory,” the Court in 2016, in Molina-Martinez v. United States,[6] held that sentencing courts must still use the guidelines as a “starting point and initial benchmark.”[7]
In the years since Booker, there has been significant jurisprudence as to the appropriate level of deference that should be afforded to the Guidelines, with a general tendency to give courts more latitude in determining appropriate sentences. The Court’s decision in Loper Bright will likely increase the debate on the proper role of the Guidelines.
Prior to the Court’s decision in Booker, federal courts sentenced pursuant to the applicable guideline range 72% of the time. However, by 2023, federal courts sentenced pursuant to the guidelines range only 42% of the time. For particular types of crimes, the percentages have been even lower. For drug trafficking offenses, courts have followed the guidelines only 26.6% of the time; for economic crimes, the rate of compliance was 37.5%.
This decline in adherence to the Guidelines undermines the central point the Guidelines were meant to address — that defendants be sentenced consistently across jurisdictions. Prior to the implementation of the Guidelines, there was a wide disparity of sentences across judges and across jurisdictions. The Guidelines were designed to minimize these inconsistencies.
However, given the high rates of variance from the guidelines, there are once again significant disparities in sentencing. This is something that Justice Scalia predicted in his dissent in Booker.[8]
Booker, Molina-Martinez and its progeny essentially require that a sentencing judge start with a determination of the sentence called for under the Guidelines, the policy statements, and the associated Commentary. In the Stinson decision, the Supreme Court set out these three categories of the guidelines, with a different level of deference given to each. The Guideline themselves are to be given the same deference as “legislative rules adopted by federal agencies.” This is similar to the Chevron deference given to other agency rules. The policy statements to the guidelines were to be treated similar to the Guidelines themselves. Finally, the Commentary (Application Notes) to the Guidelines explain the guidelines and their application.
The Commentary to the Guidelines is written by the Commission as an interpretation of the Guidelines.[9] In Stinson,[10] the Court held that the Commission’s Commentary should be treated the same as a federal agency’s interpretation of its own legislation. The Court reasoned that the “functional purpose” of the Commentary was to assist in the interpretation of the application of the Guidelines, similar to the deference given to the interpretation of any other federal agency.[11] The Court held that the Commentary was therefore binding on the appellate court because it did not violate the Constitution or federal statute, was not plaining erroneous, and was not inconsistent with the Guidelines themselves.[12]
The Court in Stinson held that the Commentary carry “controlling weight unless it is plainly erroneous or inconsistent with” the guideline that it interprets.[13] This is similar to the deference the Court articulated four years later for executive agencies interpretations of their own legislative rules in Auer v. Robbins, 519 U.S. 452 (1997)[14] That is, the Commentary should be followed absent clear error or inconsistency with the text of the Guidelines themselves
An often-analyzed issue is Guideline Section 2B1.1, the section of the fraud guidelines that uses “loss” as the key metric in determining a sentence for a fraud charge. The Commentary to the guidelines defines loss as “the greater of actual loss or intended loss.”[15] This Commentary has sometimes resulted in sentences that is based on “intended loss,” which can far outstrip actual loss, thus leading to a sentence that is far above that if based on “actual loss.”
In Kisor v. Wilkie,[16] in 2019, the Court limited Auer deference to situations where a regulation was actually ambiguous. The Court is Kisor rules that deference to an agency determination must meet two conditions: (1) genuine ambiguity; and (2) the existence of an authoritative, expert based agency judgment. Absent these two conditions, an agency’s determination or interpretation of a statute is not to be afforded any deference.[17]
As to the term “loss,” there currently exists a Circuit split as to the deference that Courts should apply to the Commission’s definition. The split stems from the Court’s decision in Kisor, which as noted above limited deference under Auer to regulations that were “genuinely ambiguous,” and the interpretation of the regulation is based upon the agency’s “authoritative, expert-based, fair, or considered judgment.” Circuits are split in two ways. First, not all courts have ruled that the Kisor opinion applies to the sentencing guidelines.[18] Further, if Kisor does apply, it is unclear whether the term “loss” is genuinely ambiguous, which in turn affects the validity of the concept of “intended loss” across different jurisdictions.
In recognition of the ambiguity caused by the split in the Circuits, and also the Supreme Court’s ruling in Kisor, the Commission amended the fraud Guidelines to move the term “loss” from the Commentary (Application Notes) to the text of the Guideline. This change will take affect November 12, 2024. The amendment is aimed at resolving the split among the circuits as to the applicability of “intended loss.” However, the Loper Bright decision suggests that courts, interpreting the term “loss,” should not give deference to the Commission even if the term is contained in the text of the Guidelines. Thus, courts are left to determine whether “intended loss” is a valid exercise of the Commission’s statutory authority.
Now that the Supreme Court has overruled Chevron, federal courts will approach the Commentary to the Guidelines, and Guidelines themselves, with less deference, leading to a closer analysis of the Guidelines. This could lead to more challenges to the Guidelines based upon the standard canons of statutory interpretation, potentially altering the method by which federal courts determine criminal sentences. How the Loper Bright decision affects federal sentencing determinations will depend on how lower courts interpret Loper Bright as it applies to the sentencing guidelines. With the advent of the Loper Bright decision, it is likely that courts will be even less inclined to give deference to the Commission’s guideline determinations. Thus, it seems inevitable that sentences for federal offenses will become increasingly unmoored from the guidelines, leading to increasing disparities in sentencing across judges and across jurisdictions.
It is clear that the Supreme Court’s decision in Loper Bright has brought to the forefront the level of deference, if any, should be accorded to the Guidelines. This determination could have an even greater effect on federal criminal jurisprudence than the Court’s decision in Booker. Under the Court’s decision in Loper Bright, there is an argument that the Guidelines should essentially be given no deference. The Guidelines were initially designed to be binding on federal courts. However, the Supreme Court has declared their mandatory nature unconstitutional.[19] The Guidelines in their current advisory form in many cases defeat the policy objectives that led to their creation: ensuring certainty, proportionality, and uniformity in sentencing.
More generally, Loper Bright should lead to a significant shift in the Commission’s role in resolving Guideline interpretation and application. The Court’s ruling effectively ended Chevron deference: “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority. [Courts] may not defer to an agency’s interpretation of the law simply because a statute is ambiguous.”[20]
As applied to the Guidelines, the Court’s ruling in Loper Bright will also have significant implications for the Commission’s role in resolving Circuit splits. If the Commission’s interpretations are not given Chevron deference, the Commission is much less able to resolve any splits in the Circuits. The splits will only be resolved by the Supreme Court.
The Guidelines were for decades a significant determinate in federal sentencing. However, and particularly in light of Lopez Bright, their relevance is clearly waning. Congress, if concerned with the issue of disparate sentences for federal crimes, will have to find another way to ensure relative uniformity in federal sentencing. Given Lopez-Bright, this will have to come in the form of statutory mandate, with Congress spelling out clearly the factors to be considered and the weight they should be given. Post-Lopez Bright, the Guidelines have potentially lost almost all relevance in federal sentencing.
[1] Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
[2] 602 U.S. __, 144 S.Ct. 2244, 219 L.Ed. 832 (2024)
[3] See Sentencing Reform Act of 1984.
[4] Cite.
[5] 543 U.S. 220 (2005).
[6] 578 U.S. 189 (2016).
[7] Id. at 198
[8] Cite.
[9] Cite.
[10] 508 U.S. 36 (1993).
[11] 508 U.S. 36, 45.
[12] Id. at 38.
[13] 508 U.S. at 45 (1993).
[14] 519 U.S. 452.
[15] United States Sentencing Guidelines Section 2B1.1, comment. (n.3(A)).
[16] 588 U.S. 558 (2019).
[17] Id. at 591.
[18] Id. at 2273
[19] Booker, 543 U.S. 220 (2005).
[20] Loper Bright, 603 U.S. __, 114 S.Ct. 224, 2273, 219 L.Ed. 2d 832 (2024),
