Does deference to the Sentencing Commission's commentary to USSG § 2B1.1, cmt. n.3(A), expanding the meaning of 'loss' to include 'intended loss,' violate the applicable limitations on deference to agency interpretations?

QUESTION PRESENTED In Kisor v. Wilkie, the Court clarified that “the possibility of deference [to commentary or agency interpretation] can arise only if a regulation is genuinely ambiguous ... after a court has resorted to all the standard tools of interpretation.” 139 S. Ct. 2400, 2414 (2019). The courts of appeals are deeply divided regarding the deference owed to the commentary of unambiguous Sentencing Guidelines under Kisor. Mr. Gadson’s sentence was enhanced due to Sentencing Guidelines commentary that expanded the definition of “loss’—an unambiguous term—to include “intended loss.” Had Mr. Gadson been in one of the circuits holding that deference to commentary is inappropriate where a Guideline’s text is unambiguous, his Guidelines sentencing range would have been two to four levels lower. Indeed, the Third Circuit has already invalidated the Guideline application note that was used to enhance Mr. Gadson’s sentence. The question presented is as follows: Does deference to the Sentencing Commission’s commentary to USSG § 2B1.1, cmt. n.3(A), expanding the meaning of “loss” to include “intended loss,” violate the applicable limitations on deference to agency interpretations?