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. Lovato challenged his sentence in the Tenth Circuit, arguing that the deference given to the commentaries was unwarranted in the wake of Kisor. While the D.C. Circuit, Sixth Circuit, and Third Circuit would have agreed with Lovato, the Tenth Circuit disagreed. Now Lovato has gone to the Supreme Court to ask them to resolve this circuit split and clarify their actions in Kisor. At issue will be whether the lower courts can keep rigidly deferring to the commentaries without doing their own interpretative work.
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 the kind of deference to agency self-interpretations that must be similarly restricted. Kisor said that courts should look to agency interpretations only if the regulations really are ambiguous. But lower courts, including the Tenth Circuit in this case, have routinely failed to look for ambiguity in the sentencing guidelines before deferring to the commentaries. The guidelines are not ambiguous as to whether prior offenses include attempts—they don’t. That, not the commentaries, should decide the case.
Cato supported Lovato at the Tenth Circuit, and now we have filed an amicus brief encouraging the Supreme Court to take this case. If the Court fails to take this case and the Tenth Circuit’s decision is upheld, American citizens will continue to spend additional years in prison on the basis of bureaucratic interpretations that are not law. The Supreme Court should take this opportunity to make clear that this kind of excessive deference is not consistent with the decision in Kisor.
