Who Gets the Last Word? SCOTUS Takes on Sentencing Guidelines Deference in Beaird v. United States

The Role of Sentencing Guidelines Commentary After Stinson v. United States

The US Sentencing Commission was created by Congress in 1984 to “reduce sentencing disparities and promote transparency and proportionality in sentencing.” The Commission issues guidelines in the form of a Guidelines Manual, which reflects the advisory sentencing scheme established by the Supreme Court in United States v. Booker, 543 US 220 (2005). In addition to the guidelines themselves, the Guidelines Manual includes policy statements and commentary that interpret or explain the sentencing guidelines. Section 1B1.7 of the Guidelines Manual states:

The Commentary that accompanies the guideline sections may serve a number of purposes. It may interpret the guideline or explain how it is to be applied. Failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal. See 18 U.S.C. § 3742. In addition, the commentary may provide background information, including factors considered in promulgating the guideline or reasons underlying promulgation of the guideline.

In Stinson v. United States, 508 US 36 (1993), the Supreme Court considered whether the commentary in the Guidelines Manual is binding on federal courts. The Court of Appeals for the Eleventh Circuit held that the commentary was not authoritative but merely persuasive. Id. at 40. The Supreme Court, relying on the language from §1B1.7 above, disagreed and held that such commentary “is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Id. at 38. The Court reasoned that the guidelines commentary was “akin to an agency’s interpretation of its own legislative rules,” and, relying on Bowles v. Seminole Rock & Sand Co., 325 US 410 (1945), held that courts must defer to the commentary even when the underlying guideline is unambiguous. Id. at 45.

Notably, the Supreme Court’s 2005 decision in United States v. Booker, 543 US 220 (2005), which rendered the Guidelines advisory rather than mandatory, did not overrule Stinson. Booker addressed the Sixth Amendment implications of mandatory Guidelines but did not speak to the deference owed to the Commission’s commentary. Federal courts have accordingly continued to treat Stinson as good law, reasoning that even under an advisory regime, the commentary retains its authoritative status when courts calculate the applicable sentencing range.

The Circuit Split

The Court’s decision in Stinson remained clear and controlling precedent for 25 years — that is, until the Court decided Kisor v. Wilkie, 588 US 558 (2019). James Kisor was a Vietnam War veteran who appealed the US Department of Veterans Affairs (VA) limitation on his disability benefits. The Board of Veterans’ Appeals affirmed the limitation based on its interpretation of a VA rule governing such claims. The Federal Circuit affirmed, applying a doctrine of deference called Auer deference, which requires “deference to agencies’ reasonable readings of genuinely ambiguous regulations.” Kisor, 588 US at 563. 

The Supreme Court reversed, seizing “the opportunity to restate, and somewhat expand on, [deference to an agency’s interpretation of its own rules or regulations] to clear up some mixed messages.” 588 US at 571. It held that courts must “exhaust all the ‘traditional tools’ of construction” and confirm “genuine ambigu[ity]” before deferring — and even then, the agency’s reading must be “reasonable.” Id. at 573–75. 

The Circuit Courts of Appeal are split on whether Kisor overruled Stinson, i.e., whether district courts must defer to the commentary to the Sentencing Guidelines when entering sentences. The Third, Sixth, DC, Ninth, and Eleventh Circuits apply Kisor’s more rigorous framework before deferring to commentary, while the First, Second, Fourth, Fifth, Seventh, Eighth, and Tenth Circuits continue to apply Stinson’s broad deference. 

The circuits that have adopted Kisor’s framework reason that the decision articulated binding, generally applicable limits on deference to any agency’s interpretation of its own rules, including the Sentencing Commission’s commentary on the Guidelines. In their view, Kisor did not merely refine Auer deference in the administrative-agency context; it announced a structural principle — that deference is warranted only after independent judicial analysis confirms genuine ambiguity — that logically extends to the analogous Stinson framework. 

The circuits that continue to apply Stinson, by contrast, treat Kisor’s implications for the Guidelines as persuasive but not binding — effectively dicta. They emphasize that Kisor involved an executive-branch agency, not the Sentencing Commission, and that the majority opinion neither cited Stinson nor purported to modify the standard of deference owed to Guidelines commentary. Because the Court did not expressly overrule or limit Stinson, these circuits hold that its broad-deference rule remains binding Supreme Court precedent that only the Court itself may abrogate. The split has already produced tangible consequences. 

The Supreme Court’s Opportunity to Clarify in Beaird v. United States

On April 20, the Supreme Court granted certiorari in Beaird v. United States. Kendrick Jarrell Beaird pleaded guilty in the Northern District of Texas to unlawfully possessing a firearm as a convicted felon under 18 U.S.C. § 922(g)(1). The US District Court applied an enhancement under U.S.S.G. § 2K2.1(a)(3) for possessing a semiautomatic firearm capable of accepting a “large capacity magazine,” resulting in a sentencing range of 63 to 78 months’ imprisonment. The guidelines do not define “large capacity magazine,” but the Commission’s commentary does. Commentary Note 2 to §2K2.1 defines the term to include any semiautomatic firearm with a magazine or similar device that “could accept more than 15 rounds of ammunition.” The US District Court held that because Beaird’s firearm had a 17-round magazine, the enhancement applied. 

Beaird appealed his sentence to the Circuit Court of Appeals for the Fifth Circuit, arguing that Commentary Note 2 to §2K2.1 was not controlling based on the Supreme Court’s ruling in Kisor. Instead, Beaird argued the district court should have considered “traditional tools of construction — structure and history.” When considering these factors, he argued that the definition of a “large capacity magazine” under the guidelines is “large relative to the industry standard,” and that 17 rounds is standard in today’s consumer market. The Fifth Circuit disagreed, continuing to hold that Kisor did not impact the precedential authority of the Supreme Court’s holding in Stinson. Beaird filed a petition for writ of certiorari with the Supreme Court.

Practical Implications

The Court’s grant of certiorari could have a substantial impact on the federal sentencing framework. Federal judges would be given more discretion to interpret the meaning of guidelines without required deference to the Commission, which could affect sentencing calculations across a wide range of offenses. A decision overruling or limiting Stinson could also invite resentencing motions from defendants sentenced under commentary that arguably exceeded the scope of the underlying guideline. For its part, the Commission has already begun migrating definitions from commentary into guideline text. For example, recent amendments have moved key terms like the definition of “loss” under the fraud guideline from application notes into the guidelines themselves. A ruling overruling Stinson deference would accelerate those efforts. 

In the meantime, defense counsel should preserve challenges to commentary-based enhancements, especially where the commentary defines or expands terms absent from the text of the applicable guideline. 

We will continue to monitor developments in Beaird v. United States and will provide further updates as the case progresses.