Beaird v. United States

Chief Justice, and may it please the Court, for two reasons, the courts below erred in deferring to the commentary when interpreting guideline 2K2.1. First, the proper rule for deference to guideline commentary is no deference.

Nothing in the text of the Sentencing Reform Act suggests that courts must ever defer to commentary when interpreting a guideline, let alone defer on the, un- according to the extreme rule of Stinson.

That alone should resolve the question presented, given the baseline expectation that courts independently determine the meaning of legal provisions.

That expectation dates back to Marbury, and it should be especially hard to displace in the criminal setting, where respect for liberty demands that we turn square corners.

In fact, the Sentencing Reform Act is affirmatively incompatible with any deference regime.

Section, section 3553A4 requires that the Commission set forth the range of imprisonment in the guidelines, not elsewhere.

And Sections 994 and 995 of Title 28 attach detailed procedural requirements to the amendment of guidelines, which requirements do not apply to guideline commentary.

Why would Congress bother to require detailed notice, public comment, 180 days of congressional review, and the approval of four voting commissioners every time the co- the Commission amends a guideline if the Commission could simply bind the courts to a new interpretation of the guideline without going through all of this, simply by amending the commentary? The second reason the courts below erred in affording Stinson deference is that if the Sentencing Reform Act leaves room for deference, the proper predicate is genuine ambiguity of the kind that survives every tool of construction, not the mere absence of plain or flat inconsistency, as Stinson suggests.

The rule applied below, which requires courts to construe guidelines in ways that they think are wrong, certainly can't be found in the SRA's text, and it is not consistent with the judicial role.

I am pleased to take the Court's questions.

Uh, what do you do with Kisor?

Uh, the significant fact of Kisor is that it, uh, weakens the force of stare decisis, uh, in, in, uh, because, uh, it w- it weakens seminal rock, and so for that reason, uh, the Court should return to first principles and reconsider the terms of the statute.

My first line position, my primary rule that I s- uh, suggest the Court ought to follow, um, is that it should simply review the text of the Sentencing Reform Act and, uh, ought to, um, therefore conclude that no deference is appropriate.

However, if it believes, uh, that, that Kisor sets forth the appropriate rule, uh, for agencies, at least the rule here ought to be as favorable, uh, to judicial resolution of, uh, legal provisions as was Kisor.

Of course, after Booker, the guidelines are, uh, advisory, and I'm not sure why we should invite the lower courts to engage in somewhat strikes me as an academic exercise of interpreting.

Why don't they just, uh, look at what the Commission meant, uh, uh, in the guidelines, uh, and move on to the 3553A factors? Uh, uh, I just think, I'm not quite sure that, you know, Stinson is not a more workable regime.

The, the simple answer is that it is not the question-- it, it is not the process, uh, that the Sentencing Reform Act calls for.

It is not what the statute calls for.

The statute indicates that the, uh, courts are to find the sentencing range in the guidelines themselves.

It distinguishes between guidelines and commentary in terms of how they are created, and those are different categories of enactments, and therefore, the guidelines must be determined independently.

While there are different categories of enactments, um, I think what concerns me about your arguments is that you're suggesting that they are separable in some way, which is really not, uh, the way in which the guidelines were devised.

And I think we sort of have a, a fundamental misunderstanding of how the manual works, because the guidelines and commentary are actually inextricably linked.

And what I mean by that is that sentencing judges use the guidelines manual to do what is essentially a calculation.

It's kind of like math

mathUm, that the guidelines themselves have certain components, uh, to them, and the commentary tells you how those pieces fit together, how you are supposed to take them into account.