Whether courts owe deference to the Sentencing Commission's commentary when it expands the scope of the Sentencing Guidelines

QUESTIONS PRESENTED In Stinson v. United States, this Court ruled that courts must defer to the United States Sentencing Commission’s commentary interpreting the Sentencing Guidelines unless that commentary “is inconsistent with, or a plainly erroneous reading of, that guideline.” 508 U.S. 36, 38 (1993). Stinson required such deference even if the Commission’s interpretation “may not be compelled by the guideline text.” Id. at 47. More recently, this Court in Kisor v. Wilkie “reinforce[d]” and “further develop[ed]” limitations on when courts should defer to an agency’s interpretation of its own rules, instructing courts to defer only if regulations prove “genuinely ambiguous” after a court has “exhaust[ed] all the ‘traditional tools of construction.” 139 S. Ct. 2400, 2408, 2415 (2019). After Kisor, the courts of appeals are starkly and openly divided on when Stinson deference is appropriate. The Third, Sixth, and D.C. Circuits have all recently applied a more rigorous textual analysis rather than defer to Commission commentary that expands the scope of the Guidelines. Seven other circuits have refused to do so. Moreover, the circuits are evenly split on a question Stinson did not decide: does the rule of lenity apply when deference to commentary would increase a defendant’s sentence. Mr. Broadway thus presents the following questions: (1) Do courts owe deference to the Sentencing Commission’s commentary when it expands the scope of the Sentencing Guidelines? (2) Do the rule of lenity and the right to due process preclude Stinson deference when commentary toa Sentencing Guideline would increase a sentence?