The guidelines, like regulations issued by federal agencies, are legally binding. Judges have usually deferred to the commentaries on the guidelines, giving almost authoritative weight to the commission’s interpretations. But that type of deference was altered by the recent Supreme Court opinion in Kisor v. Wilkie. Tabb challenged his sentence in the Second Circuit, arguing that the deference given to the commentaries was unwarranted in the wake of Kisor. The three‐judge panel disagreed, and now Tabb his filed a petition to have his case heard en banc (meaning every judge on the circuit will hear the case). At issue will be whether the court keeps its precedent of deferring to the commentaries.
In Kisor, the Court paired down the deference that courts give to agencies when they interpret their own regulations. Deference to the Sentencing Commission’s commentaries is exactly that kind of deference and must be similarly restricted. Kisor said that courts should look to agency interpretations only if the regulations really are ambiguous. Past courts didn’t look for ambiguity in the sentencing guidelines before deferring to the commentaries, so Kisor makes them outdated. The guidelines are not ambiguous as to whether prior offenses include conspiracies and attempts—they don’t. That, not the commentaries, should decide the case.
Cato has filed an amicus brief in the Second Circuit supporting Tabb. If the panel opinion is not overturned, American citizens will continue to spend additional years in prison on the basis of interpretations that are not law. The Second Circuit should take this opportunity to make clear that the protections which the Supreme Court has outlined against this kind excessive deference will be respected by the lower courts.