Whether the Supreme Court's decision in Kisor v. Wilkie modifies the deference standard for Sentencing Guidelines commentary previously established in Stinson v. United States

the entrenched circuit split, and the seriousness of the error made by the Tenth Circuit. The Court of Appeals reviewed Mr. Coates’s challenge to the application of a sentencing enhancement under the framework of Stinson v. United States, 508 U.S. 36 (1993), meaning it treated the commentary to the Sentencing Guideline as controlling unless the commentary was “plainly erroneous or inconsistent with” the relevant Guideline. United States v. Coates, 82 F.4th 953, 955 (10th Cir. 2023) (quoting Stinson, 508 U.S. at 47). In doing so, the Court of Appeals refused to analyze the Guidelines commentary under this Court’s decision in Kisor v. Wilkie, 1389 S. Ct. 2400 (2019), even though Kisor unequivocally modified the deference standard that Stinson adopted. The decision below therefore wrongly applied this Court’s precedent, and it undermines a “principal purpose of the Sentencing Guidelines’—the promotion of “uniformity in sentencing imposed by different federal courts for similar criminal conduct.” Hughes v. United States, 138 S. Ct. 1765, 1774 (2018) (quoting Molina-Martinez v. United States, 578 U.S. 189, 192 (2016)) (quotation marks omitted). The circuits openly disagree about the deference owed to commentary to the Sentencing Guidelines. And that disagreement results from the precise question on which the decision below turned: does Stinson or Kisor govern? Four circuits faithfully apply Kisor. See United States v. Nasir, 17 F.4th 459 (8d Cir. 2021) (en banc); United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021); United States v. Castillo, 69 F.4th 648 (9th Cir. 2023); United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc). These courts recognize that Stinson applied Auer deference (also known as Seminole Rock deference) to the Guidelines commentary and that Kisor’s clarification of Auer deference applies equally to all situations where courts use that deference standard. Seven circuits, however, continue to apply Stinson without modification, whether by affirmatively ruling that Stinson governs or by rejecting sentencing arguments as foreclosed under circuit precedent rooted in Stinson. See United States v. Lewis, 963 F.3d 16 (1st Cir. 2020); United States v. Richardson, 958 F.3d 151 (2d Cir. 2020); United States v. Moses, 23 F.4th 347 (4th Cir. 2022); United States v. Vargas, 74 F.4th 673 (5th Cir. 2023) (en banc); United States v. Smith, 989 F.3d 575 (7th Cir. 2021); United States v. Rivera, 76 F.4th 1085 (8th Cir. 2023); United States v. Maloid, 71 F.4th 795 (10th Cir. 2023). By refusing to apply this Court’s controlling precedent, the Tenth Circuit and other circuits have undermined sentencing uniformity. The Sentencing Guidelines are the basis for every criminal sentencing, even when a judge deviates from the recommended range. See Peugh v. United States, 569 U.S. 530, 542 (2013). As illustrated by Mr. Coates’s case, Guidelines commentary can play a major role in sentencing by affecting that range. Currently, that commentary has varying force depending on where in the country the defendant is sentenced. This dual system— reflexive deference under Stinson for some defendants, and heightened scrutiny under Kisor for others—is untenable because it impairs a core purpose of the Sentencing Guidelines: “uniformity in sentencing imposed by different federal courts for similar criminal conduct.” Hughes, 138 S. Ct. at 1774 (quotation marks and citation omitted). 2. An extension of time is also warranted because counsel, who are representing Mr. Coates on a pro bono basis, have multiple other obligations that coincide with the current deadline. Mr. Green presented oral argument to this Court in Brown v. United States, No. 22-6389, on November 27. His preparations occupied much of his time in the preceding weeks. Mr. Green and Mr. Loss-Eaton are also responsible for preparing multiple petitions for writs of certiorari currently due in December. Mr. Loss-Eaton is additionally responsible for briefing issues remanded b