# *United States v. Tabb* April 30, 2020 • Legal Briefs By [Ilya Shapiro](https://www.cato.org/people/ilya-shapiro), [Trevor Burrus](https://www.cato.org/people/trevor-burrus), and Dennis Garcia [ Download PDF ](https://www.cato.org/sites/cato.org/files/2020-05/Tabb-Amicus-Brief-As-Filed.pdf) Learn more about [Cato’s Amicus Briefs Program](/about/cato-amicus-program). Zimmian Tabb pled guilty to aiding and abetting the distribution of crack cocaine. He was given an extended sentence based on his designation as a “career offender” for having prior offenses of attempted assault and federal narcotics conspiracy. The United States Sentencing Commission issues guidelines that judges use to determine the sentences of convicted criminals. One of these guidelines requires harsher sentencing for those who have committed previous controlled-substance offenses or previous crimes of violence. But the guidelines do not include conspiracy controlled-substance offences or attempted crimes of violence—those interpretations are only in the commentaries to the guidelines. 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. *Kiso*r 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didn’t look for ambiguity in the sentencing guidelines before deferring to the commentaries, so *Kisor* makes them outdated.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. [![Tabb-cover.jpg](/sites/cato.org/files/styles/serial_cover_phone/public/2020-05/Tabb-cover.jpg?itok=bf-_lxR7)](https://www.cato.org/sites/cato.org/files/2020-05/Tabb-Amicus-Brief-As-Filed.pdf) ### Download This Legal Brief ##### *United States v. Tabb* [ Download PDF ](https://www.cato.org/sites/cato.org/files/2020-05/Tabb-Amicus-Brief-As-Filed.pdf) ##### About the Authors [![Ilya Shapiro](/sites/cato.org/files/styles/author_picture/public/2021-01/Ilya%20Shapiro.jpg?itok=m1_rdWBG)](/people/ilya-shapiro) ##### [Ilya Shapiro](/people/ilya-shapiro) Former Vice President and Director, Robert A. Levy Center for Constitutional Studies, Cato Institute [![Trevor Burrus](/sites/cato.org/files/styles/author_picture/public/2021-01/Trevor%20Burrus.jpg?itok=onKmjXsL)](/people/trevor-burrus) ##### [Trevor Burrus](/people/trevor-burrus) Former Research Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute [ ](https://twitter.com/TCBurrus) ![Media Name: garcia-cropped.png](/sites/cato.org/files/styles/author_picture/public/authors/crops/garcia-cropped.png?itok=TDrXK7ho) ##### Dennis Garcia Former Legal Associate [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/). [ Download PDF ](https://www.cato.org/sites/cato.org/files/2020-05/Tabb-Amicus-Brief-As-Filed.pdf)