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Criminal Says No Sentencing Guideline Deference Under Loper Bright

OCT. 11, 2024

United States v. Lucidonio

DATED OCT. 11, 2024
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United States v. Lucidonio

October 11, 2024

Patricia S. Dodszuweit
Clerk of Court
U.S. Court of Appeals for the Third Circuit
21400 U.S. Courthouse
601 Market Street
Philadelphia, PA 19106-1790

Re: United States of America v. Nicholas Lucidonio; 24-1285

Dear Ms. Dodszuweit:

On October 2, 2024, this Court ordered the filing of supplemental letter-briefs addressing “what deference, if any, is given to the United States Sentencing Guidelines after the Supreme Court's decision in Loper Bright Enterprises v. Raimondo.” Appellant asserts that no deference should be given to the Sentencing Guidelines as a whole, and specifically none should be given to U.S.S.G. §2T1.9, which is the subject of this appeal.1

“[T]he winds have changed. In Kisor, the Supreme Court awoke us from our slumber of reflexive deference.” United States v. Nasir, 17 F.4th 459, 472 (3d Cir. 2021) (Bibas, J., concurring). Five years later, with the Kisor winds blowing stronger, this Court should now take the next step: ending reflexive deference to the Sentencing Guidelines themselves.

Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024) advances the Supreme Court's trend away from administrative agency deference. In Loper Bright, the Supreme Court eliminated deference to administrative agencies' interpretation of ambiguous statutes. It “remains the responsibility of the court to decide whether the law means what the agency says.” Id. at 2261 (citation omitted). And, “statutes have a single best meaning.” Id. at 2266. A plain reading of Loper Bright is that it likewise eliminates judicial deference to the Sentencing Guidelines promulgated by the United States Sentencing Commission. At the very least, Loper Bright requires courts to discard any Guideline that does not comport with the Court's interpretation. Here, this Court should hold that the absence of reasoned decision-making by the Commission in promulgating U.S.S.G. §2T1.9 eliminates any possible deference.

We begin with what should be common ground between the parties. The United States Sentencing Commission is “an independent commission in the judicial branch of the United States,” 28 U.S.C. §991, whose duty is to promulgate the Sentencing Guidelines, see 28 U.S.C. §994. “The Sentencing Commission promulgates the guidelines by virtue of an express congressional delegation of authority for rulemaking [. . .] and through the informal rulemaking procedures in 5 U.S.C. §553, see 28 U.S.C. §994(x). Accordingly, the guidelines are the equivalent of legislative rules adopted by federal agencies.” Stinson v. United States, 508 U.S. 36, 44-45 (1993). Commentary, on the other hand, is “akin to an agency's interpretation of its own legislative rules.” Id. at 45.

The weight given the Commentary has already been modified by the Supreme Court's anti-deference trend. As this Court has explained, “Congress has delegated substantial responsibility to the Sentencing Commission, but, as the Supreme Court emphasized in Kisor, the interpretation of regulations ultimately 'remains in the hands of the courts.'” Nasir, 17 F.4th at 472. Consequently, in this Circuit, courts do not defer to the Guidelines Commentary unless the Guideline is genuinely ambiguous — and even then only if the Commentary is a reasonable interpretation, among other limitations. Id. at 471.

As with the Commentary, Appellant submits that courts have “gone too far in affording deference” to the Guidelines themselves. Id. The root of the error lies in the mistakenly broad view of the Congressional delegation to the Commission. Loper Bright, 144 S. Ct. at 2263. Courts must “effectuate the will of Congress subject to constitutional limits” by “recognizing constitutional delegations, 'fixing the boundaries of the delegated authority' [ ] and ensuring the agency has engaged in 'reasoned decisionmaking' within those boundaries.” Id. at 2263 (citations omitted). Thus, before any deference to agency rules could ever be due, the courts must first ensure that the Commission properly exercised its delegated authority.

Here, this Court should utilize Loper Bright‘s reasoning to find that judicial deference to the Guidelines is no longer warranted. The Sentencing Guidelines, though intended to eliminate disparities (see 28 U.S.C. §§991(b)(1)(B), 994(f)), have continued to encounter difficulties in achieving this goal. While the Guidelines are not mandatory, United States v. Booker, 543 U.S. 220 (2005), and the Supreme Court already considered a broad non-delegation challenge in Mistretta v. U.S., 488 U.S. 361, 393 (1989), the Guidelines should be reexamined in light of Loper Bright.

Even after Booker, Guidelines play a pivotal role in sentencing. Courts are still required first to calculate the appropriate Guidelines range. See Gall v. United States, 552 U.S. 38, 51 (2007). The starting point matters because it shapes the entire analysis. “[W]hen the starting point for the . . . analysis is incorrect, the end point, i.e., the resulting sentence, can rarely be shown to be unaffected.” United States v. Carter, 730 F.3d 187, 193 (3d Cir. 2013) (internal quotation marks omitted). Loper Bright requires that this Court reconsider the automatic deference given to the Guidelines at the beginning of each defendant's case. Though intended to shape a new system of equal sentencing, the Guidelines have not achieved these goals.2 Thus, while the Guidelines can remain a component of the Court's analysis, they should not be placed at the forefront of each case and granted pole position.

Moreover, Loper Bright counsels against any such finding as it relates to Section 2T1.9 specifically. Deference to rulemaking depends on the promulgation being based on “reasoned decisionmaking.” Id. at 2263. That requires the agency to follow the correct procedures in issuing the regulation. Id. Section 2T1.9 was not promulgated using the required procedures, and therefore is not a product of “reasoned decisionmaking.”

Under 28 U.S.C. §991(x), the Guidelines are subject to the notice-and-comment procedures in 5 U.S.C. §553. This requires that a Guideline be published in the Federal Register, followed by an opportunity for comment by the public.

Here, Section 2T1.9 did not go through the required procedure.3 It was not contained within the preliminary draft sent for notice and comment on October 1, 1986. 51 Fed. Reg. 35080. Nor was it contained within an amended set of Guidelines circulated for public comment in February 1987. 52 Fed. Reg. 3920, 3967. It was not until April 13, 1987, when the Guidelines were sent to Congress, that Section 2T1.9 appeared in the Guidelines for the first time — long after notice-and-comment had concluded. See 52 Fed. Reg. 18046.4

Because Section 2T1.9 did not appear in the Guidelines until after the public comment period, the Guideline was not promulgated pursuant to proper notice-and comment procedures. “[T]he essential purpose of according §553 notice and comment opportunities is to reintroduce public participation and fairness to affected parties after governmental authority has been delegated to unrepresentative agencies.” United States v. Reynolds, 710 F.3d 498, 519–20 (3d Cir. 2013). Thus, the failure to subject Section 2T1.9 to such scrutiny pushes it outside the scope of Congress's delegation to the Commission, which in turn requires that this Court afford no deference to the Guideline. See Loper Bright, 144 S. Ct. at 2268.

The alternative is untenable: binding the public to agency rules without any intervening “checking mechanism to insure that all relevant views are evaluated by the commission.” S. Rep. No. 98-225, at 181 (1983). Notice and comment is no mere formality. The public did comment on other sections of the Guidelines, for instance,5 and the Commission amended the proposed Guidelines in response to such comments. But the public had no such opportunity with 2T1.9, and subsection (b)(2) in particular. The Commission's failure to submit Section 2T1.9 to notice and comment prevented the “exchange of views information, and criticism between interested persons and the agency which is the very essence of notice and comment requirements.” Reynolds, 710 F.3d at 518 (internal quotation marks omitted). This is all the more important now, given the government's newfound relish for enhancing sentences using subsection (b)(2) even in mine-run payroll tax fraud cases charged under 18 U.S.C. §371.6

In short, the Sentencing Guidelines are the product of rulemaking by an agency delegated that authority by Congress. The statutes governing the authority of the Sentencing Commission to promulgate and amend the Guidelines limit the scope of the Commission's authority. The Guidelines have not achieved the purposes of their creation, and at least in the instance of Section 2T1.9, are not the product reasoned decision-making. As a result, under Loper Bright, this Court should decline to extend deference to the Guidelines or Section 2T1.9 any longer.

Respectfully submitted,

Ian M. Comisky
Date: October 11, 2024

FOOTNOTES

1On October 10, 2024, a text order was issued by the Clerk granting an Unopposed Motion for Extension of time to file a Supplemental Letter Brief and permitting the filing on or before October 11, 2024.

2Some of the criticism is discussed in Appellant's reply brief. (Reply Br. at 23-25).

3The government does not dispute this summary of the history of the Guideline. (Resp. Br. at 20-21).

4Appellant acknowledges the three amendments to Section 2T1.9 since its original promulgation in 1987. (See Amendments 233, 234, 491). However, these do not change the analysis that Section 2T1.9 is procedurally invalid and is therefore owed no deference. These changes were non-substantive with respect to the issues raised in this case.

5As the Commission noted in its February 1987 publication in the Federal Register, the second publication of the Guidelines “reflect[ed] careful consideration by the Commission of the public comments received on the preliminary draft[.]” 52 Fed. Reg. at 3920.

6A more detailed discussion is contained in Appellant's opening and reply briefs. (Opening Br. at 12, 20-22; Reply Br. at 5-7).

END FOOTNOTES

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