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

Questions Presented In Stinson v. United States, 508 U.S. 36 (1993), this Court explained that the U.S. Sentencing Commission’s commentary interpreting the Sentencing Guidelines should be “treated as an agency’s interpretation of its own legislative rule,” quoting the Seminole Rock standard that such an interpretation “is authoritative unless it .. . is inconsistent with, or a plainly erroneous reading of, that guideline.” Jd. at 38. In Kisor v. Wilkie, 139 S. Ct. 2400 (2019), this Court noted that it had sent “mixed messages” about Seminole Rock deference in the past and clarified that a court errs when it defers to an agency’s construction of its regulation without determining that the regulation is “genuinely ambiguous,” and that the agency has made a “reasonable” interpretation that “come[s] within the zone of ambiguity.” Id. at 2408, 2415. The courts of appeals are openly divided over a question that necessarily follows—namely, whether courts may continue to defer to Commission commentary without first deciding that the underlying Guideline is genuinely ambiguous as to the matter expounded upon in the commentary. At least two circuits say no. At least six (including the Tenth Circuit) say yes. The questions presented are: 1. Whether courts may defer to Sentencing Commission commentary without first determining that the underlying Guideline is genuinely ambiguous. 2. Whether Commission commentary impermissibly expands the unambiguous definitions of crime of violence in U.S.S.G. § 4B1.2 to include attempts and conspiracies to commit crimes of violence. ii