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

QUESTIONS PRESENTED 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.” Jd. 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)