Yesterday, the Supreme Court granted certiorari to decide "[w]hether Stinson v. United States, 508 U. S. 36 (1993), still correctly states the rule for the deference that courts must give the commentary to the Sentencing Guidelines." Beaird v. United States, No. 25-5343 (Apr. 20, 2026) (cert. granted).
The Courts of Appeals are divided as to the effect that Kisor v. Wilke, 588 U.S. 558 (2019), has on the validity of Stinson. Stinson held that courts construing a Guideline must follow the Commentary unless "commentary and the guideline it interprets are inconsistent in that following one will result in violating the dictates of the other." In doing so, the Court applied its prior holding in Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), which governs an agency's interpretation of its own legislative rules. Under Seminole Rock, “provided an agency's interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’”
Nearly three decades after Stinson, Kisor significantly limited Seminole Rock deference, casting doubts on Stinson. Kisor held that an agency's interpretation of its own regulation is not entitled to deference until a reviewing court has "exhaust(ed) all the 'traditional tools' of construction," and only if the regulation thereafter remains "genuinely ambiguous." Following Kisor, the circuits have reached opposite conclusions as to whether Kisor upended Stinson. Compare United States v. Dupree, 57 F.4th 1269, 1275 (11th Cir. 2023)(en banc)(Kisor requires reevaluation of Stinson); United States v. Nasir, 17 F.4th 459, 471 (3d Cir. 2021)(same); United States v. Riccardi, 989 F.3d 476, 479 (6th Cir. 2021); United States v. Castillo, 69 F.4th 648, 656 (9th Cir. 2023)(same) with United States v. Vargas, 74 F.4th 673, 683 (5th Cir. 2023)(en banc)(Stinson unaffected); United States v. Moses, 23 F.4th 347, 357 (4th Cir. 2022)(same); United States v. White, 97 F.4th 532, 539 (7th Cir. 2024)(same); United States v. Maloid, 71 F.4th 795, 806 (10th Cir. 2023)(same).
Resolution of this issue is important to criminal defendants because the Guidelines are replete with Commentary that interprets the Guidelines in ways that the reader would not predict from the text, often increasing the defendants advisory guideline range.
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