Zimmian Tabb v. United States

This Court in Stinson v. United States, 508 U.S. 36 (1993), applying the Seminole Rock standard for agency deference, held “that commentary in the [U.S. Sentencing Commission’s] Guidelines Manual that interprets * * * a guideline is authoritative unless it * * * is inconsistent with, or a plainly erroneous reading of, that guideline.” Id. at 38. This Court in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), “reinforce[d] the limits” of Seminole Rock and Stinson, holding that agencies may issue binding interpretations of their own regulations only when those regulations are “genuinely ambiguous,” and a court errs when it defers to an agency’s construction of its regulations without first “exhaust[ing] all the ‘traditional tools’ of construction.” Id. at 2408, 2415; id. at 2424 (Roberts, C.J., concurring); id. at 2448 (Gorsuch, J., concurring); id. at 2448-2449 (Kavanaugh, J., concurring). The courts of appeals are openly divided over a question that necessarily follows from Kisor—namely, whether courts may continue to defer to Guidelines commentary under Stinson’s “inconsistent with, or * * * plainly erroneous” standard without first deciding whether the underlying regulatory text is genuinely ambiguous. The Sixth and D.C. Circuits say no; seven others say yes. The questions presented are:

1. Whether courts may defer to Sentencing Guidelines commentary without first determining that the underlying Guideline is genuinely ambiguous.

2. Whether the Sentencing Commission can use commentary to rewrite a Guideline that applies to “prohibit[ions]” on the “distribution” of drugs, U.S.S.G. § 4B1.2, to apply to conspiracies and attempts to distribute drugs. (I)